GIFT   OF 

MICHAEL  REESE 


REMINISCENCES  OF 
THE  GENEVA  TRIBUNAL 


KEMINISCENCES  OF 

THE   GENEVA  TRIBUNAL 

OF  ARBITRATION 

1872 

THE  ALABAMA  CLAIMS 

BY 

FRANK  WAKEEN  HACKETT 


BOSTON  AND  NEW  YORK 
HOUGHTON  MIFFLIN  COMPANY 

fttoerai&e  prestf  Cambribjje 
1911 


COPYRIGHT,  IQII,   BY  FRANK  WARREN  HACKETT 
ALL  RIGHTS  RESERVED 

Published  February  IQII 


TO  MY  WIFE 
IDA  CRAVEN  HACKETT 


PREFACE 

IT  is  now  almost  forty  years  since  the  Tribunal  of 
Arbitration  at  Geneva  happily  disposed  of  the 
famous  "Alabama  Claims,"  that  had  at  one  tune 
threatened  to  bring  on  a  war  between  the  United 
States  and  Great  Britain.  The  loser  paid  with  a 
good  grace  the  sum  of  fifteen  millions  five  hundred 
thousand  dollars  in  gold,  as  indemnity;  and  the  two 
countries  ever  after  have  been  all  the  firmer  friends. 

As  Secretary  to  Mr.  Caleb  Gushing,  senior  Amer- 
ican Counsel,  I  did  my  share  of  clerical  work,  at 
Paris,  hi  the  preparation  of  our  Counter-Case  and 
Argument;  and,  going  to  Geneva,  I  was  present  at 
the  sessions  of  the  Tribunal  open  to  Agents  and 
Counsel.  I  thus  gained  at  first  hand  a  store  of  infor- 
mation; and  moreover,  made  the  acquaintance  of  all 
the  actors  in  this  great,  international  drama.  Inci- 
dents fell  under  my  observation  that  have  not  here- 
tofore been  made  public,  and  yet  they  are  not  with- 
out value  in  throwing  light  upon  the  record  of  what 
was  accomplished  during  that  memorable  summer 
in  Switzerland. 

For  some  time  I  have  been  minded  to  tell  the 
story  of  Geneva  in  the  form  of  Personal  Recollec- 
tions. But  no  sooner  did  I  enter  upon  the  project 
than  I  discovered  that,  hi  order  to  impart  to  a  new 
generation  a  correct  idea  of  these  proceedings,  it  was 


238185 


viii  PREFACE 

needful  first  to  explain  the  origin  of  the  "Alabama 
Claims,"  and  point  out  the  reasons  why,  for  a  cer- 
tain period,  they  had  assumed  an  importance  so 
overshadowing;  and  further  to  set  forth  the  grounds 
upon  which  we  maintained  that  Great  Britain  had 
become  responsible  to  us  for  damages.  To  do  this 
meant  something  more  than  to  jot  down  notes  of 
one's  own  personal  experience.  It  was  to  furnish 
at  least  the  outlines  of  a  history. 

In  the  following  pages  an  attempt  has  been  made 
to  combine  the  easy  and  familiar  terms  of  personal 
reminiscence  with  that  more  sober  delineation  of 
events,  and  that  graver  tone  of  reflection,  which  are 
demanded  of  a  work  professedly  historical. 

To  kindly  disposed  friends  and  correspondents, 
both  here  and  abroad,  who  have  given  me  aid  and 
encouragement,  I  return  a  most  grateful  acknow- 
ledgment. I  may  not  estimate  the  extent  of  my 
obligations  to  the  late  Honorable  John  Chandler 
Bancroft  Davis.  If  the  praise  accorded  by  me  to 
this  distinguished  man  shall  seem  to  go  beyond 
bounds,  I  can  only  say  that  I  am  not  conscious  that 
in  a  single  instance  has  my  judgment  been  affected 
by  that  warm  attachment  with  which  he  long  ago 
inspired  me.  Nor  can  I  sufficiently  thank  the 
accomplished  wife  who  has  survived  him.  Her 
remarkably  full  and  exact  knowledge  of  what  took 
place  at  Washington,  at  London,  at  Paris,  and  at 
Geneva,  is  equalled  only  by  the  keenness  with 
which  she  interpreted  its  diplomatic  significance. 


PREFACE  ix 

The  assistance  rendered  by  Mrs.  Bancroft  Davis  has 
been  invaluable. 

The  work  of  the  Tribunal  of  Arbitration  of  1872 
stands  as  a  great  landmark  of  the  nineteenth  cen- 
tury. Time  cannot  lessen  the  interest  with  which 
the  statesman  must  look  back  upon  it.  If  what  I 
have  written  shall  afford  to  the  reader  a  somewhat 
clearer  vision  of  the  meaning  and  the  lasting  effect 
of  what  was  wrought  out  at  Geneva,  together  with  a 
just  estimate  of  the  services  of  each  eminent  person- 
age, American  or  English,  Italian,  Swiss,  or  Brazil- 
ian, who  contributed  to  bring  about  that  splendid 
victory  for  peace,  I  shall  feel  that  my  labors  have 
indeed  been  well  rewarded. 

WASHINGTON,  September,  1910. 


CONTENTS 

LIST  OP  BOOKS xiii 

I.  SECRETARY  TO  CALEB  GUSHING 1 

II.  THE  UNFRIENDLINESS  OF  GREAT  BRITAIN   ....    18 

III.  THE  ALABAMA  CLAIMS  —  TREATY  OF  WASHINGTON  .    45 

IV.  OUR  WORK  AT  PARIS 95 

V.  THE  PLEADINGS  :   CASES  AND  COUNTER-CASES     .    .  131 

VI.  THE  INDIRECT  CLAIMS  — THE  TREATY  IN  PERIL      .  159 
VII.  THE  TREATY  SAVED — THE  ARBITRATION  GOES  ON  .  207 

VIII.  THE  TRIAL 266 

IX.  THE  DAMAGES 310 

X.  THE  AWARD 326 

XI.  AFTERMATH 355 

APPENDIX 

I.  PROTOCOL  OF  MAY  4, 1871;  TREATY  OF  WASHINGTON  381 
II.  THE  RESIGNATION  OF  MR.  MEREDITH  AS  COUNSEL  .  388 

III.  THE  TRIBUNAL'S  ANNOUNCEMENT  AS  TO  INDIRECT 

CLAIMS 393 

IV.  MR.  RHODES  ON  THE  ALABAMA  CLAIMS 396 

V.  THE  INDIRECT  CLAIMS  AND  THE  COSTS  OF  PURSUIT  403 

INDEX  417 


LIST  OF  BOOKS 

THE  following  is  a  list  (not  complete)  of  books  that  may 
be  consulted  with  reference  to  the  "Alabama  Claims," 
and  their  disposition  by  the  Geneva  Tribunal  of  Arbitra- 
tion: — 

I.  Correspondence  concerning  claims  against  Great 
Britain,  transmitted  to  the  Senate  of  the  United  States 
in  answer  to  the  resolutions  of  December  4th  and  10th, 
1867;  and  of  May  27th,  1868.  Volumes  i  and  n  (1869); 
in,  1870;  iv,  1869;  v,  1870.  Correspondence  concerning 
claims  against   Great  Britain,  volumes  vi,  1871;  vn, 
1871  (volume  vn  contains  a  list  of  claims).  Washing- 
ton: Government  Printing  Office. 

II.  The  National  and  Private  Alabama  Claims,  and 
their  Final  and  Amicable  Settlement,  by  Charles  C. 
Beaman,  Jr.   Washington,  1871. 

III.  A  Historical  Account  of  the  Neutrality  of  Great 
Britain  during  the  American  Civil  War,  by  Mountague 
Bernard,  M.A.,  Chichele  Professor  of  International  Law 
and  Diplomacy  in  the  University  of  Oxford.    London, 
1870. 

IV.  Papers  relating  to  the  Treaty  of  Washington. 
Washington:  Government  Printing  Office,  1872. 

Vol.  I.  Geneva  Arbitration:  Containing  the  Case 
of  the  United  States;  the  Case  of  Great  Britain;  the 
Counter-Case  of  the  United  States;  and  a  portion 
of  the  additional  documents,  correspondence,  and 
evidence  which  accompanied  the  same. 

Vol.  II.  Geneva  Arbitration:  Containing  the 
remainder  of  the  papers  accompanying  the  Counter- 


xiv  LIST  OF  BOOKS 

Case  of  the  United  States;  Counter-Case  of  Her 
Britannic  Majesty 's  Government;  Instructions  to 
the  Agent  and  Counsel  of  the  United  States,  and 
Proceedings  at  Geneva,  in  December,  1871,  and 
April,  1872;  correspondence  respecting  the  Geneva 
Arbitration,  and  the  proposed  supplemental  article 
to  the  Treaty;  and  declaration  of  Sir  Stafford  North- 
cote,  at  Exeter. 

Vol.  /III.  Geneva  Arbitration:  Containing  the 
Argument  of  the  United  States;  Argument  of  Her 
Britannic  Majesty 's  Government  and  Supplement- 
ary Statements,  or  Arguments,  made  by  the  respect- 
ive Agents  or  Counsel. 

Vol.  IV.  Geneva  Arbitration:  Containing  the 
report  of  the  Agent  of  the  United  States;  Protocols 
of  the  Conferences;  Decision  and  Award  of  the 
Tribunal;  Opinions  of  the  Arbitrators;  Reply  of 
the  Secretary  of  State,  acknowledging  the  receipt 
of  the  Report  of  the  Agent  of  the  United  States,  and 
commenting  upon  the  opinion  of  the  Arbitrator 
appointed  by  Her  Britannic  Majesty;  Report  of  the 
Counsel  of  the  United  States;  and  Opinions  of  states- 
men, magazines,  and  journals  of  Great  Britain  and 
the  Continent  on  the  construction  of  the  Treaty. 

V.  The  Annual  Register  for  the  year  1872.  London, 
1873.   Chapter  i,  pp.  22-24,  and  chapter  iv,  pp.  88-118. 

VI.  British  State  Papers:  1873,  volume  74. 

VII.  The  Treaty  of   Washington.    Its    Negotiation, 
Execution,   and  the  Discussions  relating  thereto,   by 
Caleb  Gushing.  New  York,  1873. 

VIII.  The  Geneva  Award  Acts:  With  notes  and  refer- 
ences to  decisions  of  the  Court  of  Commissioners  of 


LIST  OF  BOOKS  xv 

Alabama  Claims,  by  Frank  W.  Hackett,  of  the  Washing- 
ton (D.  C.)  Bar.  Boston,  1882. 

IX.  Twenty  Years  of  Congress,  from  Lincoln  to  Gar- 
field,  with  a  review  of  the  events  which  led  to  the  Political 
Revolution  of  1860,  by  James  G.  Blaine.  Norwich,  Conn., 
1886.  Volume  n,  chapter  xx. 

X.  The  Life  of  Lord  John  Russell,  by  Spencer  Walpole. 
London,  1889,  volume  n,  chapter  xxix,  The  American 
Civil  War. 

XL  Life,  Letters,  and  Diaries  of  Sir  Stafford  North- 
cote,  First  Earl  of  Iddesleigh,  by  Andrew  Lang.  Edin- 
burgh and  London,  1890,  volume  n. 

XII.  Mr.  Fish  and  the  Alabama  Claims,  a  Chapter  in 
Diplomatic  History,  by  J.  C.  Bancroft  Davis.   Boston 
and  New  York,  1893. 

XIII.  History  and  Digest  of  the  International  Arbitra- 
tions to  which  the  United  States  has  been  a  party,  to- 
gether with  appendices  containing  the  treaties  relating 
to  such  arbitrations  and  historical  and  legal  notes  on 
other  international  arbitrations  ancient  and  modern,  and 
on  the  domestic  commissions  of  the  United  States  for  the 
adjustment  of   International  Claims,  by  John  Bassett 
Moore,  Hamilton  Fish  Professor  of  International  Law 
and  Diplomacy,  Columbia  University,  New  York,  Asso- 
ciate of  the  Institute  of  International  Law,  sometime 
Assistant  Secretary  of  State  of  the  United  States,  author 
of  a  work  on  Extradition  and  Interstate  Rendition,  of 
American  Notes  on  the  Conflict  of  Laws,  etc.,  in  six  vol- 
umes. Volume    i,  chapter  xiv,  The  Geneva  Arbitra- 
tion. Washington:  Government  Printing  Office,  1898. 

XIV.  Memorials,  Part  n.    Personal  and  Political, 
1365-1895,  by  Roundell  Palmer,  Earl  of  Selborae,  Lord 


xvi  LIST  OF  BOOKS 

High  Chancellor.  London,  1898.  Chapter  x,  The  Treaty 
of  Washington;  xi,  The  Geneva  Arbitration:  The  Indi- 
rect Claims;  xn,  Geneva,  Our  Companions  —  The  Arbi- 
trators —  The  Final  Award. 

XV.  International  Courts  of  Arbitration,  by  Thomas 
Balch.    Philadelphia,  1899. 

XVI.  Charles  Francis  Adams,  by  his  son,  Charles 
Francis  Adams.  (American  Statesmen.)  Boston  and  New 
York,  1900. 

-XVII.  The  Alabama  Arbitration,  by  Thomas  Willing 
Balch.    Philadelphia,  1900. 

XVIII.  Lee  at  Appomattox,  and  Other  Papers,  by 
Charles  Francis  Adams.   Boston  and  New  York,  1902. 
II.  Treaty  of  Washington;  Before  and  After.  Second  Edi- 
tion, enlarged,  1903. 

XIX.  Reminiscences  of  Sixty  Years  in  Public  Affairs, 
by  George  S.  Boutwell.   2  volumes.   New  York,  1902. 

v  XX.  The  Life  of  William  Ewart  Gladstone,  by  John 
Morley.  London  and  New  York,  1903. 

XXII.  The  Life  of  Granville  George  Leveson  Gower, 
Second  Earl  Granville,  K.G.,  1815-91,  by  Lord  Edward 
Fitzmaurice.    London  and  New  York,  1905.  2  vols. 

XXIII.  History  of  the  United  States,  from  the  Com- 
promise of  1850  to  the  Final  Restoration  of  Home  Rule 
at  the  South  in   1877,  by  James  Ford  Rhodes,  LL.D., 
Litt.D.,  Member  of  the  Massachusetts  Historical  Society. 
Volume   vi,  ,1866-1872.    New   York,    1906.      Chapter 
xxxvni,   Foreign  Affairs — Alabama  Claims  —  Charles 
Francis  Adams,  the  Hero  of  the  Tribunal. 

XXIV.  The  History  of   Twenty-five  Years,  1856- 
1880,  by  Sir  Spencer  Walpole.   Vol.  in.  London,  1908. 


REMINISCENCES  OF 
THE  GENEVA  TRIBUNAL 


KEMINISCENCES  OF  THE 
GENEVA  TRIBUNAL 

CHAPTER  I 

SECRETARY  TO  CALEB  CUSHING 

IT  was  my  fortune  early  in  1872  to  accompany 
Caleb  Cushing  from  New  York  to  Paris,  and  later 
to  Geneva,  as  his  private  secretary.  Mr.  Cushing 
had  been  appointed  senior  member  of  the  American 
Counsel  for  the  United  States  before  the  Tribunal 
of  Arbitration,  created  under  the  Treaty  of  Wash- 
ington, to  dispose  of  the  so-called  "Alabama  Claims/' 
that  had  been  in  dispute  between  the  United  States 
and  Great  Britain.  In  this  capacity  I  naturally 
came  into  possession  of  some  facts  of  more  or  less 
interest  relating  to  the  conduct  of  our  Case  at 
Geneva.  These  facts,  it  seems  to  me,  are  worthy 
of  being  put  upon  record,  since  they  throw  a  side- 
light of  no  little  value  upon  what  was  done  in  that 
memorable  affair,  and  are  thus  helpful  to  history 
in  reaching  a  just  and  impartial  verdict. 

It  may  be  well  enough  for  me  to  explain  how  I 
happened  to  be  situated  so  as  to  be  able  conven- 
iently to  accept,  at  short  notice,  an  invitation  to 
go  abroad  with  Mr.  Cushing. 


THE  GENEVA  TRIBUNAL 


Six  years  previous,  I  had  been  admitted  to  the 
bar,  whereupon  I  had  opened  a  law-office  in  Court 
Square,  Boston.  Clients  are  proverbially  slow  to 
discover  hidden  talent;  and  Boston  enjoyed  the  re- 
putation of  being  probably  the  most  difficult  local- 
ity in  the  whole  country  in  which  a  young  lawyer 
could  get  a  footing.  But  by  sticking  closely  to  my 
office,  and  attending  carefully  to  what  little  busi- 
ness was  put  into  my  hands,  I  approached  by  slow 
degrees  the  point  where  a  fair  prospect  had  opened 
for  a  steadily  increasing  income.  But  in  the  summer 
of  1870,  certain  symptoms  admonished  me  that  the 
climate  of  Boston  was  not  suited  to  my  health. 
Taking  the  advice  of  the  best-qualified  specialist  in 
town,  as  well  as  one  of  the  noblest  and  kindest  of 
men,  Doctor  Henry  Ingersoll  Bowditch,  I  closed  my 
law-office  temporarily,  and  perfected  arrangements 
to  spend  a  year  in  the  dry,  bracing  air  of  Minnesota. 

I  went  out  to  St.  Paul,  and  thence  to  Minnea- 
polis. Here,  by  spending  a  large  part  of  each  day 
out  of  doors,  riding  horseback,  and  taking  long 
walks,  I  passed  a  happy  winter,  with  the  result  that 
every  sign  of  weakness  of  the  lungs  completely  dis- 
appeared. 

During  the  summer  of  1871,  the  problem  pre- 
sented itself  for  solution  whether  upon  the  whole  it 
was  safe  to  resume  practice  in  Boston.  Doctor  Bow- 
ditch  again  applied  his  stethoscope,  and  pronounced 
the  verdict  that  it  was  better  for  me  not  to  venture 
to  live  in  Boston.  Accordingly,  I  closed  my  law- 


SECRETARY  TO  CALEB  GUSHING   3 

office,  and  later  in  the  season  again  started  for  St. 
Paul,  with  a  purpose  half-formed  of  settling  down  in 
that  thriving  city  to  the  practice  of  my  profession. 

The  experience  I  underwent  en  route  at  Chicago 
was  remarkable  enough  to  warrant  my  making  of  it 
a  brief  mention.  Arriving  there  on  Friday  night,  our 
train  killed  a  passenger  just  as  we  were  entering 
the  station.  On  Saturday  night,  a  burglar  was  shot 
in  a  dwelling-house,  in  one  of  the  most  fashionable 
streets.  Chicago  seemed  to  me  a  lively  place.  I  was 
paying  a  brief  visit  to  a  friend  of  my  Harvard  Law 
School  days,  David  B.  Lyman,  who  lived  near 
Washington  Square.  On  Sunday  evening,  hearing 
an  alarm  of  fire  not  far  off,  Lyman  and  I  went  out  to 
see  what  it  meant.  I  remember  our  climbing  upon 
the  roof  of  a  low  wooden  outhouse,  whence  we  had 
a  view  of  what  promised  to  be  rather  an  extensive 
conflagration.  After  looking  at  the  progress  of 
the  fire  for  a  while,  and  taking  it  for  granted  that 
it  would  in  due  time  be  extinguished,  we  returned 
to  the  house;  and  I  went  to  bed. 

Sometime  after  midnight  Lyman  aroused  me,  and 
said  that  Portland  Block,  in  which  was  his  law-office, 
was  gone.  To  be  brief,  this  fire  was  the  famous 
burning-up  of  Chicago,  which  destroyed  more  than 
two  thousand  acres  of  buildings.  For  twenty-four 
hours  near  Lyman's  house  horses  had  stood  harn- 
essed ready  to  take  us  to  a  place  of  safety,  —  in 
case  the  wind  should  shift  and  sweep  our  house 
away.  My  trunk  had  been  sent  to  the  station.  I 


4  THE  GENEVA  TRIBUNAL 

had  expected  to  start  for  St.  Paul  that  morning,  but 
whether  the  railroad  station  remained  in  existence 
or  not,  I  felt  almost  ashamed  to  enquire.  It  for- 
tunately happened,  however,  that  the  fire  stopped, 
after  having  swept  up  to  the  very  block  on  which  the 
station  stood. 

On  Sunday  morning,  I  had  heard  Robert  Collyer 
preach  at  the  Unitarian  Church.  After  the  sermon  a 
man,  evidently  out  of  his  wits,  stood  up,  wildly  ges- 
ticulated, and  in  a  loud  voice  uttered  denunciations. 
Two  gentlemen  approached  him,  and  quietly  led 
him  down  the  aisle  and  out  of  the  church,  he  all  the 
way  making  imprecations.  A  vague  sense  of  an 
omen  impressed  itself  on  my  mind.  Before  twenty- 
four  hours  had  elapsed  the  church  was  level  with  the 
ground. 

As  I  walked  down  that  morning  into  what  had 
been  the  business  district,  hi  regions  where  great 
buildings  had  stood,  I  saw  men  gathered  into  groups 
and  I  listened  to  their  remarks.  Not  one  was  com- 
plaining; but  everywhere  I  could  hear  the  expression 
of  dauntless  resolve.  Knowing  that  an  account  of 
this  great  disaster  would  be  eagerly  read,  I  scribbled 
off  a  description  of  considerable  length,  and  ad- 
dressed the  letter  to  the  New  York  Times.  There 
was  not  a  post-office  to  be  found;  nor  indeed  could 
I  discover  the  sign  of  a  place  for  running  out  trains. 
Finally,  I  came  across  a  man  on  the  railroad  tracks, 
who  told  me  that  he  was  a  brakeman,  and  that  he 
meant  to  go  out  on  the  first  train  that  should  be  sent 


SECRETARY  TO  CALEB  GUSHING      5 

East.  At  my  request,  he  took  the  letter,  and  pro- 
mised me  that  he  would  mail  it.  I  never  heard  what 
became  of  that  letter.  I  boarded  the  very  first  train 
to  leave  the  smoking  ruins  for  Milwaukee  and  St. 
Paul.  There  was>  I  remember,  a  poor  woman  on 
board,  who,  with  her  child,  was  trying  to  get  to 
relatives  in  Minnesota.  She  had  lost  everything.  A 
generous  subscription  was  taken  up  among  us  pass- 
engers for  her  relief. 

Arriving  at  St.  Paul  early  in  the  forenoon,  I  made 
my  way  directly  to  the  office  of  the  Evening  Dis- 
patch, not  far  from  the  station.  I  told  the  editors 
that  I  would  gladly  furnish  them  with  some  details 
of  the  calamity.  Since  I  happened  to  be  the  first 
person  from  Chicago  seen  at  that  office,  they  were 
quick  to  accept  my  offer.  Seated  at  a  table,  I  filled 
sheet  after  sheet,  as  fast  as  pen  could  travel,  and  in 
an  incredibly  short  time  I  could  hear  the  newsboys 
crying  their  "Extra"  in  the  street. 

My  plan  as  to  opening  a  law-office  requiring 
further  reflection  before  a  final  decision, —  I  don't 
mind  at  this  distance  of  years  confessing  that  a 
longing  to  be  back  on  the  seaboard  had  something 
to  do  with  it,  —  I  resolved  to  go  again  to  Minnea- 
polis for  a  while,  and  put  myself  under  another 
regimen  of  out-of-door  exercise.  So  I  went  thither, 
and  renewed  with  genuine  pleasure  the  agreeable 
footings  of  the  previous  winter.  This  plan  turned 
out  to  be  a  wise  move.  What  with  horseback-riding, 
daily  walks,  an  occasional  sleighing-party,  a  moder- 


6  THE  GENEVA  TRIBUNAL 

ate  study  of  law  and  much  general  reading,  —  all 
supplemented  by  an  observance  of  regular  hours  for 
sleep,  I  soon  began  to  experience  a  sense  of  growing, 
day  by  day,  into  the  buoyancy  of  a  vigorous  phys- 
ical condition. 

One  Saturday  evening,  when  the  thermometer 
was  ranging  far  below  zero,  I  entered  Brigham's 
boarding-house,  on  Hennepin  Avenue,  with  the 
glow  upon  me  of  a  brisk  walk,  and  found  a  telegram 
by  the  side  of  my  plate,  at  the  tea-table.  My  friend 
and  classmate,  Charles  Cotesworth  Beaman,  was 
asking  me  from  Washington  if  I  could  go  to  Geneva 
as  private  secretary  to  Caleb  Gushing.  Recommend- 
ing me  for  this  post  was  most  kind  of  Beaman,  who 
knew  of  my  enforced  leisure,  and  who  wished  to  do 
me  a  great  favor. 

Mr.  Gushing,  I  was  aware,  was  going  abroad  as 
Counsel  for  the  United  States  before  the  Tribunal  of 
Arbitration,  created  by  the  Treaty  of  Washington, 
for  the  settlement  of  the  "Alabama  Claims/'  I  also 
knew  that  Beaman  had  been  made  Solicitor  for  the 
United  States,  to  prepare  a  list  of  the  claims,  and 
their  amounts,  together  with  proof  of  the  same; 
and  that  he  was,  in  that  capacity,  to  accompany  the 
Counsel  abroad.  I  recalled  the  circumstance  that 
William  M.  Evarts  of  New  York  and  Morrison  R. 
Waite  of  Ohio  were  also  of  Counsel. 

No  serious  obstacle  being  in  the  way,  I  promptly 
accepted  this  wholly  unexpected  invitation.  The 
last  night  of  my  stay  in  Minneapolis  was  passed  in 


SECRETARY  TO  CALEB  GUSHING   7 

the  hospitable  chambers  of  my  good  friend,  the  late 
Samuel  R.  Thayer.1  By  starlight  the  next  morning, 
the  16th  of  January,  I  was  driven  in  a  sleigh  to  the 
railroad  station,  bound  for  Washington. 

An  accident  to  a  freight-train,  not  far  from  Fort 
Wayne,  detained  us  for  a  while,  until  a  temporary 
track  could  be  laid  around  the  wreck,  over  which 
track  we  slowly  crawled.  I  was  impressed  with  the 
facility  with  which  the  work  was  handled.  As  if  this 
were  not  enough  to  get  us  on  bad  terms  with  the 
time-table,  a  breakdown  occurred  near  Harrisburg, 
and  our  train  became  decidedly  worsted.  One 
trifling  incident  of  this  journey  remains  in  my 
memory.  Before  we  had  reached  Baltimore,  the  con- 
ductor came  along  and  put  into  the  hand  of  every 
through  passenger  an  envelope  containing  a  sum  of 
money.  The  obolus  was  designed  to  be  paid  to  the 
Charon  of  a  Baltimore  and  Ohio  conductor,  who 
upon  these  terms  would  let  us  go  over  to  the  Na- 
tional Capital.  This  curious  performance,  it  seems, 
had  become  needful  because  of  a  war  then  raging 
between  the  two  corporations. 

We  reached  Washington  at  last.  I  walked  through 
the  cavernous  and  dingy  structure,  at  the  corner  of 
New  Jersey  Avenue  and  C  Street,  that  constituted 
the  only  railroad  station 2  in  the  city,  and  took  my 
course  to  the  Department  of  State.  This  Depart- 
ment was  at  that  day  housed  in  an  ugly  brick  build- 

1  Subsequently  (1899-1903)  our  Minister  to  the  Netherlands. 

2  Abandoned  only  in  1907,  for  the  magnificent  Union  Station. 


8  THE  GENEVA  TRIBUNAL 

ing  upon  Fourteenth  Street  North- West,  at  the  cor- 
ner of  S.  One  could  see  at  once  that  its  contracted 
quarters  were  grotesquely  unfit  for  such  occupancy.1 
Here  I  found  Beaman  at  work  amid  a  mass  of  papers 
and  documents.  He  welcomed  me  heartily.  After 
imparting  such  information  as  I  needed  in  respect  to 
our  future  movements,  he  directed  me  to  the  office 
of  Mr.  Gushing. 

Putting  myself  in  calling  order,  I  waited  upon  that 
distinguished  lawyer,  whom  I  found  in  a  room  up- 
stairs, in  a  house  on  the  south  side  of  H  Street,  near 
Fourteenth,  occupied  by  the  Mexican  and  American 
Claims  Commission.  For  a  considerable  period  Mr. 
Gushing  had  been  acting  as  counsel  for  Mexico,  but 
this  office  he  had  resigned  hi  order  to  take  up  his 
new  duties.  I  beheld  a  fine-looking  man,  of  an  im- 
posing presence,  a  face  full  of  intellectual  force,  with 
eyes  sharp  and  penetrating.  His  hair  had  but  just 
begun  to  turn  grey.  But  let  me  borrow  a  description 
from  a  townsman  of  Mr.  Gushing,  who  had  known 
him  well  throughout  his  career:  — 

"He  was  handsome,  of  full  size,  well-built,  robust  and 
strong;  and  with  that  fine,  firm  color  in  his  cheek,  even  to 
the  last  of  his  life,  that  implies  good  health  and  a  vigorous 
constitution.  .  .  .  His  complexion  was  fair,  and  his  dark 

1  It  was  here  that  the  Treaty  of  Washington  had  been  signed, 
&  May,  1871.  The  Department,  which  had  occupied  the  building 
since  1866,  removed  in  1875  to  the  granite  structure  west  of  the 
White  House,  which  it  has  outgrown.  For  many  years  the  Four- 
teenth Street  building  has  been  the  home  of  the  Washington  City 
Orphan  Asylum. 


SECRETARY  TO  CALEB  GUSHING   9 

eyes,  which  were  rather  small,  were  very  bright  and  rest- 
less, indicating  great  mental  activity  and  acuteness;  but 
his  distinctive  qualities  were  to  be  seen  in  the  lower  part 
of  his  face,  which  was  notably  firm,  resolute,  and  aggress- 


ive. 


»  i 


The  General  (for  President  Polk  had  appointed 
him  a  brigadier-general  of  volunteers  during  the 
War  with  Mexico,  Gushing  having  raised  a  regi- 
ment at  his  own  expense,  of  which  he  went  out  as 
colonel)  closely  inspected  the  newly  arrived  candi- 
date. He  put  a  few  questions.  I  let  him  know  that 
I  was  not  afraid  of  work.  So  far  as  I  could  detect, 
he  discovered  in  his  young  caller  no  special  mark 
of  disqualification.  General  Cushing's  cordial  and 
considerate  bearing  gave  me  full  assurance  that  our 
relations  were  going  to  be  most  agreeable.  Having 
imparted  a  suggestion  or  two,  regarding  the  nature 
of  the  services  that  he  expected  me  to  perform,  he 
directed  me  to  be  in  New  York,  at  a  date  named, 
ready  for  sailing.  Taking  the  first  train,  I  went  to 
visit  my  parents  for  a  few  days  at  Portsmouth,  New 
Hampshire. 

On  the  day  appointed,  the  26th  of  January,  at 
nine  o'clock  in  the  morning,  I  reported  at  the  Astor 
House  for  duty.  Mr.  Gushing  promptly  set  me  to 
work.  The  first  thing  I  found  out  was  how  extremely 
methodical  was  his  habit  of  attending  to  even  the 

1  Eben  F.  Stone  (Harvard,  1843)  of  Newburyport,  a  leader  of 
the  Bar,  and  a  member  of  Congress:  Address  delivered  before  the 
Essex  Bar  (1889),  p.  21. 


10  THE  GENEVA  TRIBUNAL 

smallest  detail  of  business.  Every  scrap  of  paper, 
every  card  of  a  visitor,  had  to  be  saved,  and  filed 
away  in  its  proper  place,  —  absolutely  without 
exception. 

For  a  beginning,  I  was  asked  to  go  out  into  the 
streets  and  hunt  up  young  Mr.  Waite,  the  son  of 
Mr.  Waite  of  our  counsel.  "He  is  somewhere  in  the 
city.  He  is  going  to  sail  with  us  to-morrow,  and  I 
think  you  had  better  go  out  and  see  it  you  can  find 
him." 

This  I  proceeded  to  do,  and  by  good  luck  I  was 
able  within  a  very  short  time  to  lay  hold  upon  the 
gentleman  in  question  and  bring  him  in  to  see 
Mr.  Gushing.  He  proved  to  be  a  lively,  attractive 
fellow. 

We  were  scheduled  to  sail  at  three  o'clock,  Satur- 
day afternoon  (27  January,  1872),  in  the  Ville  de 
Paris  of  the  French  Line,  a  favorite  ship,  reputed  to 
be  the  fleetest  Atlantic  steamer  afloat.  The  ship 
started  on  time.  Though  it  was  a  bleak  day,  a  group 
of  friends  were  standing  upon  the  wharf  to  see  us  off. 
The  names  of  two  now  living  I  can  recall:  Elihu 
Chauncey  (my  classmate)  and  John  Clinton  Gray, 
—  the  latter,  since  1888,  a  judge  of  the  New  York 
Court  of  Appeals. 

Our  party  consisted  of  Mr.  Gushing  (who  was 
taking  with  him  Andrew,  a  faithful  colored  attend- 
ant from  Virginia),  Mr.  Beaman,  Mr.  John  Davis, 
Mr.  Edward  T.  Waite,  and  myself. 

The  passengers  numbered  about  fifty,  a  fair  list 


SECRETARY  TO  CALEB  GUSHING    11 

for  that  season  of  the  year.  Among  them  was  Mr. 

H ,  of  a  large  New  England  manufacturing  city, 

amusing  and  good-natured.  He  had  made  a  fortune, 
and  he  announced  to  us  his  intention  of  spending 
his  money  freely.  He  confided  to  me  one  afternoon, 
in  the  lee  of  the  smokestack,  what  seemed  at  the 
moment  information  of  a  startling  character,  to  the 
effect  that  he  was  going  to  buy  paintings  hi  Italy. 
"I  guess  ten  thousand  dollars  for  a  beginning  ought 
to  get  a  good  lot  of  pictures, — don't  you  think  so?  " 
I  told  him  I  did. 

Captain  Surmont,  the  best  sailor  on  the  line, 
commanded  the  Ville  de  Paris.  He  was  a  fine-look- 
ing man,  of  large  frame,  bluff  and  hearty.  Mr. 
Gushing,  as  the  passenger  of  the  highest  distinction, 
sat  at  the  Captain's  right  hand  at  dinner.  Since  the 
Captain  quite  regularly  occupied  a  seat  at  the  head 
of  the  table,  we  had  occasion  to  observe  his  polite 
and  attractive  manners.  A  few  years  later  than  the 
period  of  which  we  are  now  speaking,  it  was  Captain 
Surmont's  fate  to  have  command  of  the  Ville  de 
Havre,  when  that  ship  was  sunk  in  mid-ocean  by  col- 
lision, with  the  loss  of  many  lives.  Her  gallant  com- 
mander was  rescued  from  the  water  to  survive  for 
but  a  brief  season.  It  is  thought  that  Surmont  died 
of  a  broken  heart.  His  kind  bearing  to  us  young  men 
I  shall  never  forget. 

My  chief,  good  sailor  that  he  was,  appeared  to 
enjoy  every  moment  on  shipboard.  He  would  pace 
the  deck  clad  hi  an  old  coat  coming  down  to  his 


12  THE  GENEVA  TRIBUNAL 

heels,  and  a  tight-fitting  cap  that  had  little  to  do 
with  the  prevailing  fashion.  He  was  no  stranger  to 
the  democratic  gathering  of  the  smoking-room.  Let 
a  question  be  asked,  and  Mr.  Gushing  would  re- 
spond with  a  flood  of  information.  The  more  out-of- 
the-way  the  topic,  the  more  abundantly  would  this 
remarkable  man  draw  upon  a  store  of  memories 
seemingly  inexhaustible.  If  one  ventured  an  en- 
quiry bearing  a  little  too  closely  upon  the  subject  of 
his  mission  abroad,  the  rest  of  the  company  could 
only  admire  the  ingenuity  and  kindly  shrewdness 
with  which  the  Counsel  for  the  United  States  set  to 
talking  about  something  else.  We  left  Sandy  Hook 
at  five  on  the  afternoon  of  Saturday,  27  January. 
Our  voyage  was  uneventful.  The  weather  behaved 
fairly  well,  considering  that  it  was  mid-winter.  The 
sea  continued  smooth  nearly  all  the  way  over; 
though  we  had  a  cold,  foggy  and  generally  disagree- 
able time  of  it  off  the  Banks,  —  with  squalls  enough 
to  maintain  the  reputation  of  that  locality.  On  the 
evening  of  our  last  day  on  board,  Captain  Surmont 
gave  a  dinner  of  special  excellence,  with  some  extra 
adornment,  —  a  drinking  of  healths,  and  an  ex- 
change of  other  compliments  befitting  the  occasion. 
When  I  awoke  on  Tuesday  morning,  the  6th  of  Feb- 
ruary, they  told  me  that  we  were  lying  at  anchor  in 
the  harbor  of  Brest. 

History  perhaps  would  scarcely  turn  aside  to 
record  the  incident  I  am  about  to  relate.  Still,  I 
think  I  shall  be  pardoned  for  letting  it  come  in  as  a 


SECRETARY  TO  CALEB  GUSHING    13 

part  of  the  ana  of  the  Tribunal  of  Arbitration.  At  all 
events,  it  occurred  while  our  faces  were  set  toward 
Geneva. 

There  were  on  board  two  or  three  handsome 
American  girls,  with  whom  the  young  secretaries 
felt  it  a  duty  to  get  acquainted.  One  evening,  the 
moon  was  in  the  sky  (at  least,  I  am  going  to  put  it 
there),  the  sea  was  smooth,  and  the  ship  was  bowl- 
ing along  in  good  shape  with  much  sail  set,  —  what 
breeze  there  was  being  favorable.  Not  having  any- 
thing else  to  do,  I  was  trying  to  make  myself  agree- 
able to  Miss ,  who  was  seated  well  aft  by  the 

rail.  Not  far  from  us  was  a  good-looking,  young 
officer,  of  slender  figure,  walking  to  and  fro,  it  being 
his  watch  on  deck.  He  had  already  been  presented; 
and  I  could  see  him  cast  an  envious  glance  at  me  as 
he  passed.  In  a  spirit  of  generous,  international 
sympathy  (and  just  for  the  fun  of  the  thing),  I 
watched  an  opportunity,  and  taking  off  my  cap,  I 
offered  to  exchange  it  for  the  gold-laced  one  that  he 
wore.  He  politely  handed  me  his,  —  I  put  it  on,  and 
proceeded  myself  to  take  the  deck.  The  young  gen- 
tleman of  France  needed  no  urging.  I  shouldered  all 
the  nautical  responsibility  of  the  moment,  and  walk- 
ing off  a  bit  further  forward,  left  him  seated  by  the 
side  of  the  fair  American  for  a  few  minutes.  It 
seemed  long.  The  ship  kept  on  her  course. 

Surely  so  gallant  an  instance  of  self-sacrifice  ought 
not  to  go  unchronicled.  That  daring  young  fellow 
may  now  be  on  the  bridge  —  a  grizzle-bearded  com- 


14  THE  GENEVA  TRIBUNAL 

mander,  who  would  not  for  an  instant  dream  of  tol- 
erating such  a  flagrant  breach  of  discipline  on  board 
his  ship. 

Yet  the  young  lady  was  undeniably  handsome. 
And  remember,  a  moon  figured  in  the  transaction. 

On  the  morning  of  the  6th  of  February,  at  an  early 
hour,  our  little  party,  save  one  member,  was  landed 
at  Brest,  the  seat  of  a  great  naval  establishment. 
Mr.  John  Davis,  who  had  brought  over  a  mass 
of  papers  and  documents  from  the  Department  of 
State,  to  be  used  hi  preparing  the  Counter-Case  of  the 
United  States,  was  to  stay  on  board  the  ship  till  she 
reached  Havre,  whence  he  was  to  go  by  rail  to  Paris. 

Although  our  stay  would  be  very  brief,  we  re- 
paired to  the  Hotel  La  Margue;  and  later,  made  a 
tour  of  observation.  There  was  not  much,  however, 
to  detain  us,  and  we  were  ready  to  depart  at  the 
noon  hour.  We  had  planned  to  pass  the  night  at 
the  interesting  town  of  Rennes,  formerly  the  capital 
of  Brittany.  We  arrived  there  after  dark,  and  took 
rooms  at  the  Grand  Hotel. 

I  shall  never  forget  my  first  night  hi  a  foreign 
land.  The  bronzes  on  the  mantel  of  the  room,  and 
the  great  eiderdown  coverlets  on<  the  bed  reminded 
me  that  I  was  trying  to  go  to  sleep  in  a  strange 
country.  As  it  was,  I  did  not  grow  drowsy.  I  heard 
the  singing  of  the  commune,  or  fancied  that  I  did. 
The  melodious  chiming  of  the  quarter-hours  (to  me 
a  novelty)  helped  to  keep  the  traveller  in  a  state  of 
rather  pleasurable  wakefulness.  At  last,  however, 


SECRETARY  TO  CALEB  GUSHING  15 

being  really  tired,  I  had  begun  to  enjoy  a  slumber 
when  something  roused  me.  My  -ear  detected  the 
sound  of  distant  voices  that  seemed,  as  I  listened,  to 
be  coming  nearer,  and  the  playing  in  a  low,  sweet 
key  of  some  musical  instruments.  Opening  the  win- 
dow, I  looked  down  into1  the  narrow  street  that 
curved  below,  and  beheld  what  appeared  to  be  a 
company  of  revellers  returning  from  a  wedding- 
feast.  They  carried  torches,  and  they  tripped  along 
with  an  air  of  jollity. 

As  the  tones  died  away,  I  wished  good  luck  to  the 
bride  and  groom,  and  felt  grateful  that  quiet  had 
been  restored.  Later  in  the  night,  a  second  body  of 
celebrants  passed  through  the  street  below,  and  I 
was  aroused  to  make  a  note  of  the  fact.  Wondering 
if  any  particular  advantages  were  attached  to  this 
curious  custom,  or  whether  nuptials  in  broad  day- 
light were  not  more  considerate  of  that  portion  of 
the  public  who  could  expect  no  invitations,  I  com- 
posed myself  again  to  rest,  only  to  have  it  broken,  so 
I  could  attend  to  the  coming  of  still  a  third  band, 
a  bit  noisier  than  either  of  its  predecessors.  What 
little  was  left  of  the  morning  I  devoted  to  a  series  of 
short  naps. 

At  four  o'clock  I  was  aroused  by  a  knocking  at  the 
door,  intended  to  have  me  up  at  five  o'clock.  At  the 
latter  hour,  I  was  dressing  by  candlelight,  so  as  to 
go  with  my  chief  to  early  mass  at  the  Cathedral  of 
Saint-Pierre,  hard  by.  Though  seventy-two  years 
of  age,  and  familiar  with  the  customs  of  a  Catholic 


16  THE  GENEVA  TRIBUNAL 

country,  Mr.  Gushing  had  a  youthful  desire  to  see 
for  himself  what  was  going  on,  wherever  he  happened 
to  be.  We  went  together  to  the  service,  which 
lasted  from  six  o'clock  to  seven.  There  was  a  goodly 
attendance  hi  point  of  numbers;  and  I  saw  much 
that  was  new  and  interesting,  though  to  tell  the 
truth,  the  celebration  did  not  carry  to  me  the  mean- 
ing that  it  should. 

Taking  carriages  later,  we  visited  numerous 
points  of  interest  in  the  town,  and  found  much  that 
was  worth  seeing.  In  the  Palais  de  Justice  we  looked 
into  three  court-rooms.  In  one  building  we  saw  the 
hall  where  formerly  the  States-General  used  to  hold 
sessions.  There  were  paintings  also  that  attracted 
us,  of  which  I  might  mention  one  by  Rubens;  also, 
a  Ruth  and  Naomi,  that  I  thought  particularly 
pleasing;  a  portrait  of  Boulay  Paty,  and  the  like. 

At  three  in  the  afternoon  our  little  party  boarded 
the  train  for  Paris,  distant  about  two  hundred  and 
thirty-five  miles.  A  stock  of  provisions  had  been 
judiciously  laidln  for  the  journey;  and  Andrew,  who 
was  skilful  at  the  business,  took  pains  in  preparing 
the  repast.  As  upon  the  day  previous,  Mr.  Gushing 
showed  himself  to  be  livelier  than  even  the  youngest 
of  us.  He  told  several  good  stories,  in  an  animated 
tone,  and  generally  proved  himself  to  be  a  delightful 
companion.  If  ever  such  an  article  has  existed  as 
Governor  Kirby's  forty-year-old  sherry,  then  that 
was  just  what  Andrew  produced  from  our  bountiful 
hamper,  and  what  we  employed  in  loyally  drinking 


SECRETARY  TO  CALEB  GUSHING    17 

to  the  success  of  the  United  States  at  Geneva.  It 
was  well  after  midnight  when  the  train  stopped  at 
the  Gare  du  Nord,  where  our  journey  by  rail  was  to 
end. 

The  streets  of  Paris  were  brilliantly  lighted,  and 
my  first  impressions  were  gained  from  the  windows 
of  a  swift-moving  carriage.  At  last  we  turned  into 
the  Rue  de  la  Paix,  and  were  set  down  at  the  Hotel 
Westminster,  where  we  were  expected,  and  where 
we  received  a  warm  welcome. 

Here  we  may  properly  pause,  and  take  a  rapid 
survey  of  the  origin  of  the  "Alabama  Claims,"  and 
of  their  disturbing  history,  in  our  attempt  to  realize 
the  intensity  of  the  feeling  engendered  between 
Great  Britain  and  the  United  States  during  a  long 
period  of  unrest.  We  shall  look  into  the  succession 
of  events  which  culminated  in  the  Treaty  of  Wash- 
ington. This  we  may  do  in  order  to  gain  an  insight 
into  the  meaning  of  what,  at  Geneva,  was  asserted 
on  one  side,  and  denied  on  the  other;  and  that  the 
reader  may  comprehend  the  true  significance  of 
what  the  Tribunal  of  Arbitration,  in  the  peace  of  the 
world,  and  to  the  lasting  credit  of  two  great  na- 
tions, then  and  there  for  all  time  determined. 


CHAPTER  II 

THE   UNFKIENDLINESS   OF   GREAT   BRITAIN 

IN  1861,  and  indeed  down  to  the  close  of  the  strug- 
gle that  the  nation  was  making  for  its  life,  anxious 
eyes  were  turned  towards  Europe.  At  the  beginning 
of  the  war,  the  loyal  North  viewed  with  many  mis- 
givings  the  conduct  of  England  and  France, — 
especially  that  of  England.  Of  course,  it^was  the 
manifest  duty  of  those  powers  to  maintain  in  per- 
fect good  faith  a  strict  neutrality. 

The  Northern  people  with  indignation  saw,  or 
conceived  that  they  saw,  from  the  outset  a  course 
of  conduct  on  the  part  of  the  Government  of  Great 
Britain  which  could  mean  nothing  else  than  sym- 
pathy and  aid  for  the  Southern  Confederacy.  This 
conduct  was  begun  so  early,  and  was  so  steadily 
maintained,  that  a  feeling  of  resentment  took  pos- 
session of  the  United  States,  —  a  feeling  which 
finally  reached  a  degree  of  bitterness  that  threatened 
to  bring  on  war.  Happily  every  trace  of  a  hostile 
spirit  on  the  part  of  our  country  towards  England 
has  long  since  disappeared.  But  the  reader  of  the 
present  generation  has  only  to  turn  to  the  public 
journals  of  that  memorable  period  in  the  loyal 
States  to  discover  how  cordial  a  dislike  for  England 
then  displayed  itself  throughout  the  land,  and  partic- 


ATTITUDE  OF  GREAT  BRITAIN      19 

ularly  in  both  branches  of  the  Service.  It  is  useless 
to  imagine  that  no  justification  whatever  existed  for 
the  origin  and  growth  of  this  animosity.  Of  course, 
in  a  civil  war,  unhappily,  the  passions  of  men  rise  to 
an  unwonted  height;  objects  seen  through  the  mist 
of  such  passions  are  unduly  magnified.  Making 
proper  allowance  for  this  distortion,  it  still  remains 
that  those  in  authority  in  Great  Britain  were  in 
truth  chargeable  with  displaying  an  unfriendly 
spirit  towards  the  United  States,  a  country  with 
which  Great  Britain  was  at  peace. 

When  the  friends  of  the  Union  were  of  a  sudden 
called  upon  to  defend  the  flag,  they  took  it  for 
granted  that  their  Anglo-Saxon  kinsmen  across  the 
sea  would  hasten  to  evince  some  unmistakable 
token  of  sympathy.  Fighting  as  they  were  in  behalf 
of  free  institutions,  they  not  only  counted  upon  an 
expression  of  good-will  from  a  country  that  years 
before  had  abolished  slavery,  but  they  longed  for 
that  expression.  In  order  that  the  full  force  of  this 
desire  may  be  understood,  the  reader  should  be 
advised,  if  he  do  not  know  it  already,  that  the  peo- 
ple of  the  United  States  at  that  day  were  peculiarly 
sensitive  to  English  criticism.  Down  to  the  out- 
break of  the  rebellion  it  had  been  a  common  prac- 
tice for  American  newspapers  regularly  to  furnish 
their  readers  with  a  publication  in  full  of  such  Eng- 
lish editorials,  or  long  extracts  therefrom,  as  had  the 
least  bearing  upon  our  political  affairs,  —  and  there 
was  no  lack  of  them.  As  yet,  in  the  world  of  litera- 


20  THE  GENEVA  TRIBUNAL 

ture  and  of  politics  we  had  not  outgrown  our 
colonial  dependence.  We  were  childishly  eager  to 
learn  what  such  oracles  as  the  Times,  the  Spectator, 
and  the  Saturday  Review  had  to  say  of  us.1  All  un- 
conscious of  the  limitations  of  these  writers  (some- 
times even  of  their  downright  ignorance)  we  stood 
ready  to  accept  then*  views,  and  attribute  to  them 
a  profundity  of  wisdom  which  in  reality  no  one  of 
them  ever  possessed.  Indeed,  it  was  the  war  itself 
that  at  last  delivered  us  from  this  species  of  intellect- 
ual thraldom  to  England. 

We  looked  to  England  for  a  kind  word,  recalling 
that  she  was  the  "mother  country,"  and  we  heard 
it  not.  There  came  a  speedy  and  rude  awakening 
from  our  dream.  As  frequently  happens  when  peo- 
ple find  themselves  thus  mistaken,  we  at  once  cast 
upon  the  other  party  all  the  blame  for  our  mortifica- 
tion. 

Instead  of  sympathy  we  encountered  proofs  of  a 
prevailing  sentiment  of  friendliness  for  the  cause  of 
secession.  We  beheld  the  governing  classes  holding 
out  to  the  South,  as  it  were,  a  helping  hand.  We  be- 
held persons  of  rank,  as  well  as  those  of  moderate 

1  After  South  Carolina  had  seceded,  Punch  observed  that  the 
"United  States"  had  become  the  "Untied  States."  There  were 
those  who  read  into  the  text  a  grim  irony  that  did  not  belong  to  it. 
In  the  exciting  hours  of  actual  warfare  we  were  confronted  not 
only  with  the  momentous  enquiry  as  to  what  England  would  do 
officially,  but  with  a  further  question  of  what  was  to  be  the  at- 
titude of  the  Englishman  in  his  private  capacity.  What  might  we 
expect  as  the  sentiment  of  the  club,  the  pulpit,  the  street? 


ATTITUDE  OF  GREAT  BRITAIN      21 

means,  hastening  to  subscribe  to  the  Confederate 
loan.  We  noted  speeches  in  Parliament  delivered  by 
members  who  openly  declared  their  belief  in  the 
speedy  success  of  the  Confederate  arms.  Lord  John 
Russell,  and  others  of  the  Ministry,  appeared  to  us 
in  the  light  of  statesmen  who  meant  to  favor  the 
South,  and  were  glad  to  do  so.  We  saw  "rebel  emis- 
saries," l  though  not  received  officially,  greeted  in 
high  places  with  every  mark  of  personal  considera- 
tion. Most  of  all,  we  knew  that  work  was  going  for- 
ward briskly  in  English  shipyards  upon  vessels  that 
were  to  be  built,  armed,  equipped,  manned,  and  sent 
forth  upon  the  ocean,  to  prey  upon  the  commerce  of 
the  United  States.  In  fine,  it  was  not  long  before,  to 
borrow  the  language  of  the  American  Case,  we  be- 
held in  England,  "the  dockyard  and  arsenal  of  the 
insurgents." 

It  is  easy  to  cite  documentary  proof  that  such  was 
the  condition  of  affairs  in  England  during  the  period 
of  the  war  for  the  Union.  One  or  two  instances, 
however,  must  suffice. 

1  If  to  the  youth  of  to-day  "rebel"  seems  archaic,  he  should  be 
reminded  that  in  war-times  the  word  was  on  the  lips  of  every  loyal 
Union  man.  In  the  American  Case  the  term  used  is  "insurgent"; 
while  the  British  Case  employs  the  expression  "Confederate." 
Mr.  Mason,  in  London,  and  Mr.  Slidell,  in  Paris,  were  spoken  of  in 
the  United  States  as  "rebel  emissaries."  One  of  the  convincing 
proofs  of  a  genuine  union  of  sentiment  between  North  and  South  is 
disclosed  in  the  almost  universal  custom  to-day  of  adopting  quietly 
the  word  "Confederate,"  throughout  the  North,  when  reference  is 
made  to  those  who  once  fought  against  the  flag. 


22  'THE  GENEVA  TRIBUNAL 

Mr.  Gladstone,  in  a  speech  at  Newcastle,  7 
October,  1862,  said:- 

"We  may  have  our  own  opinions  about  slavery;  we 
may  be  for  or  against  the  South;  but  there  is  no  doubt 
that  Jefferson  Davis,  and  other  leaders  of  the  South,  have 
made  an  Army.  They  are  making,  it  appears,  a  Navy,  and 
they  have  made  what  is  more  than  either,  —  they  have 
made  a  Nation  (loud  cheers).  .  .  .  We  may  anticipate 
with  certainty  the  success  of  the  Southern  States,  so  far 
as  regards  their  separation  from  the  North.  (Hear!  Hear!) 
I  cannot  but  believe  that  that  event  is  as  certain  as  any 
event  yet  future  and  contingent  can  be.  (Hear!  Hear!)"1 

1  Papers  relating  to  the  Treaty  of  Washington,  vol.  i,  Geneva  Arbi- 
tration, p.  41.  (Hereafter  these  volumes  will  be  cited  as  "  Gen.  Arb") 

To  say  nothing  of  the  amazing  indiscretion  exhibited  by  a  Cabi- 
net Minister,  this  unfortunate  speech  will  be  remembered  for  its 
revealing,  as  if  by  a  flashlight,  the  true  attitude  of  the  British 
Ministry  at  that  critical  period  towards  the  United  States.  Time  and 
place,  as  well  as  the  language  employed,  were  all  too  significant  to 
permit  of  any  other  meaning  than  that  which  people  in  both  coun- 
tries attached  to  this  utterance.  Naturally  such  an  announcement 
created  a  profound  sensation;  indeed  it  might  have  almost  presaged 
war. 

The  occasion  was  of  no  ordinary  moment.  The  Northern  Liberals 
had  planned  that  Mr.  Gladstone  should  visit  Newcastle  and  other 
places,  for  political  effect.  "The  people  of  the  Tyne,"  says  his 
biographer,  "gave  him  the  reception  of  a  king."  (Morley,  vol.  ii, 
p.  77.)  Bells  rang,  immense  crowds  thronged  the  streets,  the  ships 
were  decked  with  flags,  and  there  was  a  procession  on  the  river. 
The  banquet  (7  October)  was  crowded.  Everybody  keenly  listened 
to  mark  the  all-important  utterance  of  the  great  statesman. 

Lord  Palmerston  had  by  letter  (24  September,  1862)  begged  the 
Chancellor  of  the  Exchequer  not  to  let  the  country  know  that  it  was 
spending  more  money  than  it  could  afford.  Turning  to  a  topic, 
where  there  was  a  far  greater  need  of  caution,  Palmerston  seems  to 


ATTITUDE  OF  GREAT  BRITAIN      23 

In  the  House  of  Commons,  on  the  30th  of  June, 
1863,  Mr.  Gladstone,  in  the  course  of  a  long  speech, 
observed:  — 

"We  do  not  believe  that  the  restoration  of  the  Ameri- 
can Union  by  force  is  attainable.  I  believe  that  the  pub- 
have  neglected  to  advise  a  judicious  silence.  He  informed  Mr. 
Gladstone  that  "he  himself  and  Lord  Russell  thought  the  time  was 
fast  approaching  when  an  offer  of  mediation  "  ought  to  be  made  by 
England,  France,  and  Russia;  and  that  Russell  was  going  privately 
to  instruct  the  Ambassador  at  Paris  to  sound  the  French  Govern- 
ment. "  Of  course,"  Lord  Palmerston  said,  "  no  actual  step  would 
be  taken  without  the  sanction  of  the  Cabinet.  But  if  I  am  not  mis- 
taken, you  would  be  inclined  to  approve  such  a  course."  The  pro- 
posal would  be  made  to  both  North  and  South.  If  both  should 
accept,  an  armistice  would  follow,  and  negotiations  on  the  basis  of 
separation.  If  both  should  decline,  then  Lord  Palmerston  assumed 
that  they  would  acknowledge  the  independence  of  the  South. 

The  next  day  Mr.  Gladstone  replied.  He  was  glad  to  learn  what 
the  Prime  Minister  had  told  him,  and  for  two  reasons  especially  he 
desired  that  the  proceedings  should  be  prompt.  The  first  was,  the 
rapid  progress  of  the  Southern  army,  and  the  extension  of  the  area 
of  Southern  feeling.  The  second  was,  the  risk  of  violent  impatience 
in  the  cotton  towns  of  Lancashire,  such  as  would  prejudice  the 
dignity  and  disinterestedness  of  the  professed  mediation. 

On  17  September,  Russell,  to  a  letter  from  Palmerston,  three 
days  earlier,  had  replied,  saying  explicitly,  "  I  agree  with  you  that 
the  time  is  come  for  offering  mediation  to  the  United  States  Govern- 
ment, with  a  view  to  the  recognition  of  the  independence  of  the 
Confederates.  I  agree  further  that,  in  case  of  failure,  we  ought  our- 
selves to  recognize  the  Southern  States,  as  an  independent  State." 
(Spencer  Walpole's  Life  of  Lord  John  Russell,  vol .  ii,  p.  349.)  So  far, 
then,  had  the  two  heads  of  the  Government  advanced,  when  Mr. 
Gladstone  went  to  Newcastle.  (Morley,  vol.  ii,  pp.  76,  77.) 

The  world  now  knows  that  the  Chancellor  of  the  Exchequer,  at 
Newcastle,  had  it  in  mind  that  the  Cabinet  would  shortly  act  in  the 
direction  of  acknowledging  the  independence  of  the  Southern  Con- 


24  THE  GENEVA  TRIBUNAL 

lie  opinion  of  this  country  is  unanimous  upon  that  sub- 
ject. (No!)  Well,  almost  unanimous.  .  .  .  I  do  not  think 

federacy.  It  is  idle,  therefore,  to  argue  that  this  mental  attitude 
did  not  signify  the  existence  of  an  animus  in  the  Ministry  un- 
friendly to  the  United  States. 

Yet  Mr.  Gladstone  later  undertook  to  prove  that  he  did  not,  and 
could  not,  have  entertained  any  such  animus.  When  he  learned 
that  his  Newcastle  utterances  were  cited  in  the  American  Case,  he 
"  prepared  a  lengthened  statement,"  to  show  that  his  "  animus"  was 
otherwise  than  as  charged.  This  statement  he  proposed  should  be 
presented  to  the  Arbitrators.  He  naively  tells  us,  in  a  fragment  of 
autobiography,  from  which  the  preceding  facts  are  taken,  that  his 
colleagues  "objected  so  largely  to  the  proceeding  that  I  desisted." 
What  a  curious  spectacle  it  would  have  been  had  Mr.  Gladstone 
undertaken  to  explain  to  the  Tribunal  at  Geneva  that  public 
speeches  encouraging  the  Confederates  were  uttered  by  him  with- 
out a  particle  of  unfriendly  feeling  towards  the  United  States!  Mr. 
Gladstone  in  his  apology  continues  —  it  was  written  in  July,  1896 
—  "  In  this  I  think  they  probably  were  wrong.  I  addressed  my 
paper  to  the  American  Minister  for  the  information  of  his  Govern- 
ment, and  Mr.  Secretary  Fish  gave  me,  so  far  as  intention  was  con- 
cerned, a  very  handsome  acquittal."  Morley,  vol.  ii,  p.  82. 

A  manly  acknowledgment  of  error  deserves  at  all  times  admira- 
tion. We  are  not  disposed  in  the  least  to  withhold  credit  from  the 
English  statesman  for  his  words  of  reparation.  He  frankly  admits 
that  his  speech  was  "an  undoubted  error,  the  most  singular  and 
palpable,  I  may  add  the  least  excusable,  of  them  all.  .  .  .  Strange 
to  say,  this  declaration  [that  Jefferson  Davis  had  made  a  Nation, 
etc.],  most  unwarrantable  to  be  made  by  a  Minister  of  the  Crown, 
with  no  authority  other  than  his  own,  was  not  due  to  any  feeling  of 
partisanship  for  the  South,  or  hostility  to  the  North.  ...  I  really, 
though  most  strangely,  believed  that  it  was  an  act  of  friendliness  to 
all  America  to  recognize  that  the  struggle  was  virtually  at  an  end 
[October,  1862].  [Lord  Palmerston  desired  the  severance  as  a  dim- 
inution of  a  dangerous  power,  but  prudently  held  his  tongue.]  .  .  . 
I  did  not  perceive  the  gross  impropriety  of  such  an  utterance  from 
a  cabinet  minister  of  a  power  allied  in  blood  and  language,  and 


ATTITUDE  OF  GREAT  BRITAIN      25 

there  is  any  real  or  serious  ground  for  doubt  as  to  the  issue 
of  this  contest."  1 

The  English  press  were  continually  uttering 
similar,  sentiments.  The  Economist,  of  29th,  June, 
1861,  in  an  article  entitled  "Is  the  Success  of  the 
North  Possible,"  said  that 

"the  irritation  of  the  Americans  was  caused  by  their 
secret  conviction  that  most  Englishmen  in  their  hearts 
believed  that  secession  cannot  be  prevented,  and  that 

bound  to  loyal  neutrality;  the  case  being  further  exaggerated  by 
the  fact  that  we  were  already,  so  to  speak,  under  indictment  before 
the  world  for  not  (as  was  alleged)  having  strictly  enforced  the  laws 
of  neutrality  in  the  matter  of  the  cruisers." 

The  terms  of  this  confession  are  indeed  humiliating,  for  the  dis- 
tinguished statesman  goes  so  far  as  to  say,  "  It  illustrates  vividly 
that  incapacity  which  my  mind  so  long  retained,  and  perhaps  still 
exhibits,  an  incapacity  of  viewing  subjects  all  round,  in  their  ex- 
traneous as  well  as  in  their  internal  properties,  and  thereby  of  know- 
ing when  to  be  silent  and  when  to  speak." 

With  the  psychology  of  the  recantation,  interesting  though  it  be, 
we  at  present  have  small  concern.  What  the  reader  is  asked  to  keep 
in  mind  is  the  fact  that  the  British  Government  entertained  no 
sentiments  of  genuine  friendship  for  the  United  States  in  their  time 
of  trouble;  but,  on  the  contrary,  were  much  in  sympathy  with  the 
cause  of  the  Southern  Confederacy.  That  Mr.  Gladstone  is  pleased 
to  make  an  introspection  of  the  workings  of  his  mind,  and  that  he  is 
thus  enabled  to  assure  us  that  his  memory  helps  him  out  in  sustain- 
ing a  later  theory  of  altruism  of  motive,  is  really  of  no  great  con- 
sequence. The  words  uttered  by  him  upon  a  very  important  public 
occasion  (and  supplemented  by  like  deliverances  elsewhere)  stand 
as  furnishing  in  part  the  proof  that  the  United  States  was  justified 
in  complaining  at  Geneva  of  the  unfriendly  purpose  of  Great 
Britain. 

1  Gen.  Arb.,  vol.  i,  p.  43. 


26  THE  GENEVA  TRIBUNAL 

dissolution  of  the  Union  is  an  inevitable  and  accom- 
plished fact.  .  .  .  Now,  though  they  have  not  the  faint- 
est right  or  reason  to  be  angry  with  us  for  entertaining  the 
conviction  they  attribute  to  us,  they  are  quite  correct  in 
supposing  that  we  do  entertain  it.  We  do  believe  secession 
of  the  slave  States  to  be  a  fait  accompli,  —  a  completed 
and  irreversible  transaction." 

The  Saturday  Review  of  6th  July,  1861,rsaid:- 

"The  Americans  of  the  North  can  hardly  reconquer  the 
South.  They  can  assuredly  not  retain  it  in  subjection  or 
in  union,  and  they  will  be  stronger  and  safer  without  it." 

In  1887,  after  excitement  had  subsided,  and  the 
two  countries  had  begun  to  estimate  each  other  fairly, 
the  Chief  Justice  of  England  (Lord  Coleridge)  had 
this  to  say  of  the  period  of  the  war.  He  was  deliver- 
ing an  address  at  Exeter,  in  memory  of  his  intimate 
friend,  Sir  Stafford  Northcote  (Earl  of  Iddesleigh) : 

"  There  was  a  time  when,  in  the  great  American  civil 
war,  the  sympathies  of  the  English  upper  classes  went 
with  slavery,  and  when  the  North  had  scant  justice  and 
no  mercy  at  their  hands.  I  have  myself  seen  that  most 
distinguished  man,  Charles  Francis  Adams,  subjected  in 
society  to  treatment  which,  if  he  had  resented  it,  might 
have  seriously  imperilled  the  relations  of  the  two  coun- 
tries; and  which  nothing  but  the  wonderful  self-command 
of  a  very  strong  man,  and  his  resolute  determination  to 
stifle  all  personal  feeling,  and  to  consider  himself  only  as 
the  Minister  of  a  great  country,  enabled  him  to  treat, 
as  he  did,  with  mute  disdain.  But  in  this  critical  state 
of  things  in  and  out  of  Parliament  Mr.  Disraeli  and  Sir 


ATTITUDE  OF  GREAT  BRITAIN      27 

Stafford  Northcote  on  one  side,  and  the  Duke  of  Argyll 
and  Sir  George  Cornewall  Lewis  on  the  other,  mainly  con- 
tributed to  keep  this  country  neutral,  and  to  save  us  from 
the  ruinous  mistake  of  taking  part  with  the  South.  .  .  . 
I  do  not  know,  but  I  imagine  that  it  was  his  strong  sym- 
pathy with  the  Federal  cause,  and  his  sense  of  the  repara- 
tion we  owed  to  America,  which  led  him  to  place  his  great 
abilities  at  the  service  of  his  country  as  one  of  the  Com- 
missioners of  the  Treaty  of  Washington,  though  the 
Treaty  was  negotiated  by  a  Government  to  which  he  was 
politically  opposed." 1 

The  question  may  be  asked,  why,  during  the  great 
struggle  to  maintain  the  Union,  should  the  aristo- 
cracy of  England  and  her  governing  classes  have 
sympathized  with  the  South?  What  was  the  reason 
that  these  people,  with  few  exceptions,  entertained 
unfriendly  and  even  hostile  feelings  towards  the 
North? 

To  attempt  to  answer  this  enquiry  is  to  enter  a 
field  where  lurks  many  a  possibility  of  mistake.  Let 
me  venture,  however,  to  bring  forward  a  suggestion 
or  two  that  point  toward  a  cause  which  apparently 
will  yield  an  explanation.  Of  course,  the  true  rea- 
sons were  best  known  to  Englishmen  themselves; 
nor  am  I  aware  that  they  have  been  advanced  any- 

1  Macmillan's  Magazine,  January,  1888.  The  topic  of  the  in- 
tense feeling  of  hostility  in  England  receives  virile  treatment  at 
the  hands  of  Mr.  Charles  Francis  Adams,  in  his  admirable  chapter, 
"  The  Treaty  of  Washington"  (Lee  at  Appomattox  and  other  papers), 
pp.  62-66;  75-77.  See  also  James  G.  Elaine:  Twenty  Years  of 
Congress,  vol.  ii,  chap.  20. 


28  THE  GENEVA  TRIBUNAL 

where  by  writers  qualified  to  speak  authoritatively 
on  the  subject. 

First,  it  is  to  be  remembered  that  a  feeling  of 
animosity  against  England  by  no  means  slight  had 
long  existed  in  the  northern  part  of  the  United 
States,  especially  hi  New  England,  and  in  those 
Western  States  that  had  been  peopled  by  New 
England  emigrants.  This  feeling,  originating  in  the 
War  for  Independence,  had  been  intensified  by  the 
War  of  1812.  Gradually  it  became  allayed,  but  did 
not  wholly  disappear.  It  lingered  in  the  seaport 
towns  of  New  England  down  to  a  period  immediately 
before  the  war  for  the  Union  began.  The  existence 
of  such  a  feeling  on  this  side  of  the  water  must  neces- 
sarily have  had  its  effect  upon  Englishmen.  It 
seems  likely  that  the  best-educated  classes  in  Eng- 
land were  not  insensible  to  the  presence  of  an 
estrangement  between  the  two  peoples,  traditionally 
kept  alive,  though  restrained  usually  from  any 
marked  manifestation. 

I  am  not  aware  that  this  feeling  was  less  active  at 
the  South  than  within  the  borders  of  New  England; 
but  the  moment  that  the  Southern  States  seceded 
a  substantial  change  took  place,  in  the  minds  of 
leading  men  of  the  South,  in  respect  to  Great 
Britain.  Nor  is  the  fact  surprising. 

The  South  had  been  brought  into  closer  relations 
with  England  because  of  the  exportation  of  cotton. 
The  idea  of  secession,  let  us  remember,  was  of  no 
sudden  growth.  For  years  the  step  had  been  con- 


ATTITUDE  OF  GREAT  BRITAIN      29 

templated.  It  would  seem  as  if  the  process  was 
meanwhile  going  on  of  viewing  with  a  degree  of 
friendliness  the  attitude  that  England  was  likely 
some  day  to  assume,  based  upon  her  need  of  keeping 
up  a  steady  supply  of  cotton  for  her  manufactories.1 
Another  circumstance  may  be  taken  into  account 
as  having  exerted  an  influence  in  the  direction  of 
bringing  the  South  and  England  into  sympathy. 
While  a  portion  of  the  English  people  viewed  the 
institution  of  slavery  with  abhorrence,  there  were 
not  a  few  leading  men  who  recognized  in  that  insti- 
tution what  they  considered  as  perhaps  the  best 
working  system  available  for  growing  cotton,  and 
furnishing  it  to  the  English  market.  The  relation  of 
master  and  slave  had  an  effect  to  sustain  at  the 
South  a  class  of  gentlemen,  superior  in  birth  and 
education  and  attainments  to  the  poor  whites,  who 
owned  no  slaves.  The  line  of  demarcation  socially 
between  the  governing  classes  and  those  who  did 
not  take  a  hand  in  public  affairs  was  easily  discern- 
ible in  the  slaveholding  States.  In  this  respect  the 
South  and  England  resembled  each  other.  Some 

1  When  Mason  was  sent  to  London,  in  the  autumn  of  1862,  he 
was  instructed  among  other  things  to  say  that  "the  English  people 
had  a  deep  political  and  commercial  interest  in  the  establishment  of 
the  Confederacy  because  the  latter  would  not  be  a  rival,  but  a  cus- 
tomer, of  the  manufacturing  and  commercial  nations  —  that  it 
would  favor  free  trade,  prevent  the  United  States  from  any  longer 
controlling  the  cotton  supply,  and  end  the  former  Southern  desire 
to  seek  protection  and  balance  of  power  by  the  annexation  of  con- 
tiguous territory."  James  Morton  Callahan:  The  Diplomatic  His- 
tory of  the  Southern  Confederacy  (1901),  p.  133. 


30  THE  GENEVA  TRIBUNAL 

members  of  the  English  aristocracy  were  of  the 
opinion  that  the  only  gentlemen  to  be  found  in  the 
United  States  were  of  Southern  birth  and  breeding. 
The  reader  may  recall  what  Mr.  Lowell  has  told  us, 
in  his  essay  entitled  "On  a  Certain  Condescension 
in  Foreigners": — 

"During  our  Civil  War  an  English  gentleman,  of  the 
highest  description,  was  kind  enough  to  call  upon  me, 
mainly,  as  it  seemed,  to  inform  me  how  entirely  he  sym- 
pathized with  the  Confederates,  and  how  sure  he  felt  that 
we  could  never  subdue  them,  —  'they  were  the  gentlemen 
of  the  country,  you  know/" 1 

This  conviction  pervading  the  mind  of  the  Eng- 
lish aristocracy  may  have  brought  results  the  extent 
of  which  at  first  sight  would  hardly  be  suspected. 

When  men,  cherishing  such  a  feeling  of  the  innate 
superiority  of  themselves  and  of  a  kindred  race 
across  the  Atlantic  to  people  around  them,  beheld 
a  conflict  actually  arising  between  their  own  class 
(numerically  not  strong)  and  a  great  population 
where  equality  prevailed,  and  where  social  distinc- 
tion had  been  less  rigidly  fixed  for  generations,  it 
followed  naturally  enough  that  they  lent  their 
sympathies  to  the  weaker  party. 

Nor  is  there  to  be  left  out  of  the  reckoning  the 
further  circumstance  that,  when  the  Colonies  were 
first  peopled,  a  larger  number  of  the  sons  of  English 
noblemen  came  to  the  South,  and  settled  there,  than 
could  be  found  in  New  England,  or  in  what  are  now 

1  My  Study  Windows  (1875),  p.  72. 


ATTITUDE  OF  GREAT  BRITAIN      31 

the  Middle  States.  There  may  thus  have  been 
handed  down  from  father  to  son  a  certain  kindliness 
of  sentiment  toward  old  England,  which  kept  alive 
a  spark  that  in  later  years  was  capable  of  quickening 
into  flame.  Even  the  Revolutionary  era  did  not 
witness  the  total  extinction  of  such  a  sentiment  hi 
the  South.  I  am  inclined  to  think,  however,  that  not 
very  much  weight  can  be  assigned  to  the  presence 
of  an  influence  thus  originated. 

Finally,  in  our  efforts  to  trace  to  their  source  the 
feelings  entertained  by  so  many  Englishmen  of  high 
character  toward  the  Southern  Confederacy,  fight- 
ing, as  these  Englishmen  supposed,  for  rights  that 
they  could  no  longer  enjoy  in  the  Union,  we  are 
not  to  overlook  the  significant  fact  of  the  complete 
ignorance  that  prevailed  in  these  circles  regarding 
the  true  situation  of  affairs  in  America. 

Leslie  Stephen,  a  friend  of  the  cause  of  the  Union, 
visited  the  United  States  during  the  war.  He  was 
an  intensely  interested  observer.  At  a  later  day 
he  writes: — 

"Assuming  that  Englishmen  had  really  understood  the 
nature  of  the  quarrel,  I  should  feel  ashamed  of  my  coun- 
try. Of  course,  I  know  they  did  n't,  but  it  is  of  no  use 
trying  to  drive  that  into  Americans."  1 

While  the  Trent  affair  was  flagrant,  John  Bright 
in  a  letter  (from  Rochdale)  to  Charles  Sumner  (20 
November,  1861)  observes:  — 

"It  is  incredible,  almost,  how  densely  ignorant  even 
1  Life  and  Letters  of  Leslie  Stephen  (1906),  p.  122. 


32  THE  GENEVA  TRIBUNAL! 

our  middle  and  upper  class  is  with  regard  to  your  posi- 
tion. The  sympathies  of  the  great  body  of  the  people 
here  are,  I  think,  quite  right,  although  some  papers  sup- 
posed to  be  read  by  them  are  quite  wrong." l 

These  various  suggestions,  if  they  do  not  furnish 
the  true  reason,  at  least  point  in  the  direction  where 
it  is  likely  that  the  true  reason  shall  be  found  to  exist. 

The  discussion  leaves  out  of  sight  the  considera- 
tion of  a  motive  attributable  perhaps  here  and  there 
to  an  individual  Englishman,  a  motive  which  we 
hope  is  not  justly  chargeable  to  members  generally 
of  the  governing  classes,  —  namely,  a  spirit  of 
jealousy  which  a  people  is  apt  to  harbor  against  a 
successful  rival.  England,  it  is  evident,  had  been, 
and  was  likely  to  continue  to  be  to  a  certain  extent, 
jealous  of  the  material  success  of  the  United  States. 
It  is  best,  however,  to  be  careful  not  to  assign  much 
influence  to  the  workings  of  this  unworthy  yet 
perfectly  natural  impulse.  It  is  possible  that  the 
widespread  interest  evinced  by  the  upper  classes  of 
England  in  the  success  of  the  Confederacy  is  to  be 
accounted  for  only  in  a  moderate  degree  by  the 
presence  of  so  mercenary  a  motive. 

No  weightier  testimony  upon  the  question  of  fact 
can  be  cited  than  that  of  Captain  James  D.  Bullock, 
who,  from  his  position  as  a  naval  representative  of 
the  Confederate  States  in  Europe,  had  ample  oppor- 
tunity to  test  public  feeling  in  England.  He  says :  - 

1  James  Ford  Rhodes:  History  of  the  United  States,  vol.  iii,  p.  508, 
citing  Pierce,  Sumner  Papers. 


ATTITUDE  OF  GREAT  BRITAIN     33 

"My  own  personal  observation,  confirmed  by  the  testi- 
mony of  every  other  Agent  of  the  Confederate  Govern- 
ment whose  duties  compelled  him  to  reside  in  England 
during  the  Civil  War,  convinced  me  that  the  great  major- 
ity of  people  in  Great  Britain — at  least  among  the 
classes  a  traveller,  or  a  man  of  business,  or  a  frequenter 
of  the  clubs  would  be  likely  to  meet  —  were  on  the 
Southern  side.  Circumstances  threw  me  a  good  deal  with 
army  and  navy  men,  and  I  can  affirm  that  I  never  met 
one  of  either  service  who  did  not  warmly  sympathize  with 
the  South."1 

Lord  Granville  writes  to  Lord  John  Russell, 
27  September,  1862,  on  the  subject  of  a  possible 
offer  to  mediate,  and  says  it  is  premature  to  depart 
from  the  policy  adopted  by  Russell  and  Palmerston, 
"  which  notwithstanding  the  strong  antipathy  to  the 
North,  the  strong  sympathy  with  the  South,  and 
the  passionate  wish  to  have  cotton,  has  met  with 
such  general  approval  from  Parliament,  the  press, 
and  the  public."2 

At  the  head  of  our  list  of  grievances  we  put  the 
conduct  of  the  Ministry.  We  charged  them  with 
unduly  hastening  to  recognize  the  belligerency  of  the 
seceded  States.  Her  Majesty's  Government,  we 
complained,  had  acted  upon  imperfect  information. 

1  The  Secret  Service  of  the  Confederate  States  in  Europe,  vol.  ii,  p. 
303.  The  author  brings  forward  a  theory  that  English  sympathy  at 
first  was  In  favor  of  the  North,  because  of  slavery,  but  that  the 
conduct  of  the  Northern  leaders  was  such  that  the  sympathy  was, 
upon  the  breaking-out  of  the  war,  transferred  to  the  South. 

2  Ibid. 


34  THE  GENEVA  TRIBUNAL 

Without  even  waiting  forty-eight  hours  for  the  new 
Minister  to  arrive,  but  with  a  haste  that  was  most 
unbecoming,  they  issued  a  proclamation  of  neutral- 
ity which,  so  we  contended,  could  but  prove  of  the 
greatest  encouragement  to  the  Confederacy.1 

1  Mr.  Charles  Francis  Adams,  the  new  Minister  to  England, 
arrived  on  the  Niagara  at  Queenstown  on  the  12th  of  May,  1861- 
The  news  was  telegraphed  to  London.  He  reached  London  on  the 
13th.  The  morning  newspapers  of  the  14th  printed  the  Queen's 
Proclamation.  The  news  of  this  action  reached  the  United  States 
only  to  cause  deep  and  widespread  irritation.  People  did  not  stop 
to  reflect  that  England  had  a  perfect  right  to  issue  the  proclamation 
just  as  soon  as  she  saw  fit;  or  that  our  instituting  a  blockade,  and 
exercising  other  rights  of  a  belligerent,  made  it  needful  that  other 
powers  should  warn  their  people  by  proclamation.  Americans 
hardly  deigned  to  reason  about  the  precipitancy,  as  they  termed  it, 
of  a  Government  that  they  felt  sure  wished  them  no  good.  The 
profound  impression  made  by  this  act  on  the  part  of  the  Govern- 
ment of  Great  Britain  lasted  for  a  great  many  years;  and  even  now 
there  are  those  who  refuse  to  see  in  it  aught  else  than  proof  of  an 
unfriendly  feeling. 

Mr.  Charles  Francis  Adams  (son  of  the  Minister),  In  MB  Treaty 
of  Washington,  quotes  from  a  private  letter,  18  May,  1869,  from 
Hamilton  Fish  to  his  friend  S.  B.  Ruggles,  of  New  York,  in  which 
occurs  this  significant  statement  (the  italics  are  mine).  Of  England, 
Mr.  Fish  writes:  "We  have  held  she  was  precipitate;  much  may 
well  be  said  on  this  side.  She  had  promised  to  await  Mr.  Adams's 
arrival,  but  anticipated  it,  and  of  course  any  information  or 
explanation  he  might  make."  Lee  at  Appomattox,  etc.,  p.  207.  Mr. 
Fish  doubtless  had  in  mind  the  account  in  a  letter  to  Mr.  Seward, 
2  May,  1861,  of  the  interview  between  our  outgoing  Minister,  Mr. 
Dallas,  and  Lord  John  Russell,  on  1  May  at  the  latter's  private 
residence.  Lord  John,  who  had  asked  Mr.  Dallas  to  call  there,  told 
of  the  presence  in  London  of  the  three  representatives  of  the 
Southern  Confederacy  (Messrs.  Yancey,  Mann,  and  Rost),  that  he 
had  not  seen  them,  but  was  willing  to  do  so  unofficially;  that  the 


ATTITUDE  OF  GREAT  BRITAIN      35 

The  well-settled  conviction  on  the  part  of  the 
people  of  the  Union  States  that,  in  that  dark  hour, 
the  Government  of  Great  Britain  displayed  an  un- 
friendly feeling  toward  them,  has  been  made  a  sub- 

Government  had  an  understanding  with  France,  which  would  lead 
them  to  take  the  same  course  as  to  recognition.  Lord  John  also 
referred  to  the  rumor  of  a  meditated  blockade  of  Southern  ports,  and 
their  discontinuance  as  ports  of  entry. 

Mr.  Dallas  had  heard  nothing  with  regard  to  these  topics,  and  he 
prudently  refrained  from  discussing  them.  "But  as  I  informed 
him,"  says  Mr.  Dallas,  "that  Mr.  Adams  had  apprised  me  of  his 
intention  to  be  on  his  way  hither,  in  the  steamship  Niagara,  which 
left  Boston  on  the  1st  of  May,  and  that  he  would  probably  arrive 
in  less  than  two  weeks,  by  the  12th  or  15th  instant,  his  Lordship 
acquiesced  in  the  expediency  of  disregarding  mere  rumor,  and  wait- 
ing the  full  knowledge  to  be  brought  by  my  successor."  Corre- 
spondence concerning  Claims  against  Great  Britain,  vol.  i,  p.  34. 

John  Bright  said  in  the  House  of  Commons,  in  March,  1865: 
"The  proper  course  to  have  taken  would  have  been  to  wait  until 
Mr.  Adams  arrived  here,  and  to  have  discussed  the  matter  with  him 
in  a  friendly  manner,  explaining  the  ground  upon  which  the  English 
Government  had  felt  themselves  bound  to  issue  that  proclamation, 
and  representing  that  it  was  not  done  in  any  manner  as  an  unfriendly 
act  toward  the  United  States  Government. ...  It  was  done  with  un- 
friendly haste  and  had  this  effect:  that  it  gave  comfort  and  courage 
to  the  conspiracy  at  Montgomery  and  at  Richmond,  and  caused  great 
grief  and  irritation  among  that  portion  of  the  people  of  America 
most  strongly  desirous  of  maintaining  amicable  and  friendly  re- 
lations between  their  country  and  England."  Gen.  Arb.,  vol.  i,  p.  30. 

It  was  certainly  unfortunate  that  the  proclamation  could  not 
have  been  delayed  at  least  forty-eight  hours.  But  now  that  we  can 
look  with  clearer  vision  into  the  facts,  we  are  bound  to  believe  that 
we  exaggerated  the  idea  of  hostile  intention,  if  indeed  it  existed  at 
all.  Mr.  Forster,  than  whom  there  was  no  better  friend  of  the 
United  States,  says  that  the  proclamation  was  not  made  with 
unfriendly  animus.  The  truth  of  this  statement  Mr.  Forster 


36  THE  GENEVA  TRIBUNAL 

ject  of  examination  here,  in  order  that  one  may  cor- 
rectly apprehend  why  a  charge  to  this  effect  occupies 
a  conspicuous  place  in  the  American  Case.  The 
United  States,  let  it  be  understood,  was  not  asking 
that  Great  Britain  be  required  to  pay  money  as 
damages  for  having  maintained  an  unfriendly,  if 
not  a  hostile,  attitude.  Public  sentiment,  especially 
that  prevailing  hi  quarters  likely  to  influence  British 
officials,  had  to  be  taken  into  account  in  a  deter- 
mination of  the  question  of  how  far  these  officials 
had  tried  in  good  faith  to  see  to  it  vigilantly  that 
Great  Britain  observed  her  duty  as  a  neutral.  As  to 

vouches,  speaking  "from  personal  recollection  and  knowledge." 
Forster  to  Sumner,  17  July,  1869.  Reid:  Life  of  Forster,  vol.  ii,  p.  21. 

Thomas  Hughes  told  a  great  audience  in  the  Music  Hall,  Boston, 
11  October,  1870,  that  the  views  which  we  held  during  the  war  of 
the  unfriendly  purpose  of  the  Ministry  in  hastily  putting  forth  the 
proclamation  were  incorrect.  He  said:  "If  the  publication  of  the 
proclamation  was  a  mistake,  it  was  made  by  our  Government  at 
the  earnest  solicitation  of  Mr.  Forster,  and  other  warm  friends  of 
yours,  who  pressed  It  forward  entirely  as  they  supposed  in  your 
Interest."  Vacation  Rambles,  1895,  p.  398. 

No  more  trustworthy  description  of  the  feelings  of  the  several 
classes  hi  England  toward  the  United  States  at  that  period  can  be 
found  than  In  this  frank  and  manly  talk  from  one  who,  in  addition 
to  being  well  qualified  to  speak,  had  always  proved  himself  to  be  a 
devoted  friend  of  the  United  States.  The  candor  and  the  temperate 
tone  of  this  address  must  have  produced  an  excellent  effect  upon  his 
audience.  No  Englishman  stood  higher  in  the  esteem  of  the  Amer- 
ican people  than  Thomas  Hughes.  It  is  a  happy  circumstance  that 
parting  words  from  him  should  have  dealt  with  this  topic;  and  it  is 
a  pleasure  to  realize  that  these  brave  and  generous  utterances 
helped  not  a  little  in  bringing  about  a  closer  intimacy  in  thought 
and  feeling  between  the  two  great  English-speaking  nations. 


ATTITUDE  OF  GREAT  BRITAIN      37 

what  animus  inspired  the  British  Government  at 
that  period  no  enlightenment  was  needed  by  the 
American  Arbitrator;  but  it  was  important  that  the 
neutral  Arbitrators  be  advised  of  the  feeling  in 
England  towards  the  loyal  and  the  seceding  States 
respectively.  Public  sentiment  entered  as  a  factor, 
and  proof  of  it  constituted  a  part  of  the  testimony, 
throwing  light  upon  what  was  done,  and  what  was 
omitted,  in  respect  to  the  building,  equipping,  and 
sailing  of  the  Confederate  cruisers. 

Mr.  Sumner  had  insisted  that  the  Queen's  Pro- 
clamation fixed  the  liability  of  Great  Britain.  The 
President,  under  the  judicious  advice  of  his  Secretary 
of  State,  conceived  that  the  act  itself  might  be 
referred  to  in  the  formulation  of  our  demands,  not 
as  carrying  with  it  an  obligation  to  repair  damages 
growing  out  of  the  prolongation  of  the  war,  but  as 
showing  an  animus,  and  as  such  bearing  directly 
upon  the  question  of  responsibility  for  the  escape  of 
the  Alabama.1 

1  The  following  extract  from  the  London  Saturday  Review  of 
18  January,  1868,  is  pertinent  as  outlining  grounds  upon  which 
proof  of  an  unfriendly  spirit  can  be  rested:  "This  hasty  recogni- 
tion of  the  South  was  practically  connected  with  the  fitting-out  of 
the  Alabama.  It  instilled  the  belief  into  shipbuilders  that  the  Brit- 
ish Government  would  proceed  very  calmly  in  interrupting  their 
operations  on  behalf  of  the  South.  Nine  tenths  of  the  Conserva- 
tive party,  and  a  large  section  of  the  adherents  of  the  Ministry, 
were  zealous  partisans  of  the  Confederates,  and  the  escape  of  the 
Alabama  may  be  in  a  great  measure  attributed  to  the  fact  that  the 
majority  of  the  English  saw  nothing  very  much  to  regret  in  her 
escaping."  Reprinted  in  LittelVs  Living  Age,  vol.  xcvi,  p.  562. 


38  THE  GENEVA  TRIBUNAL 

Occasionally  one  comes  across  a  mention  of  the 
existence  of  this  state  of  feeling  by  English  writers  of 
a  recent  date,  as  witness  the  following  extract  from 
the  biography  of  an  English  statesman,  who  from 
first  to  last  showed  himself  to  be  a  true  friend  of 
America: — 

"The  tone  of  undisguised  hostility  to  the  North  which 
had  been  adopted  during  the  war  by  nearly  every  poli- 
tician of  eminence  in  this  country,  save  Mr.  Bright,  Mr. 
Cobden,  and  Mr.  Forster,  was  bearing  its  natural  fruit."1 

A  single  quotation  from  an  official  document  dis- 
closes the  spirit  that  dominated  Lord  John  Russell, 
in  his  dealings  with  foreign  affairs  relating  to  Amer- 
ica. When  charged  with  want  of  due  diligence,  Earl 
Russell  said:  — 

"The  law  officers  of  the  Crown  must  be  held  to  be  better 
interpreters  of  a  British  statute  than  any  foreign  Gov- 
ernment. Her  Majesty's  Government  must,  therefore, 
decline  either  to  make  reparation  and  compensation  for 
the  ;  captures  made  by  the  Alabama,  or  to  refer  the  ques- 
tion to  any  foreign  State." 2 

And  yet,  after  the  award  had  been  made  at 
Geneva,  the  Duke  of  Argyll,  writing  to  Lord  Rus- 
sell (5  December,  1872),  in  reply  to  Lord  John's 
complaints  of  what  had  been  done  by  the  Tribunal 
of  Arbitration,  said:  — 

"I  must  remind  you  that  our  conduct,  when  you  were 

1  Reid:  Life  of  Forster  (1888),  vol.  il,  p.  8. 

2  Correspondence  concerning  Claims  against  Great  Britain,  iii,  562. 


ATTITUDE  OF  GREAT  BRITAIN      39 

Foreign  Minister,  was  not  unanimously  considered  by  our- 
selves so  certainly  right  as  you  would  now  hold  it  to  be. 

"Let  me  call  to  your  recollection  one  circumstance, 
of  which  I  have  a  vivid  recollection. 

"You  and  I  had  a  conversation  one  day  about  the 
'escape'  of  the  Alabama  or  the  Florida  (I  forget  which), 
and  I  urged  on  you  that,  although  she  had  fraud- 
ulently escaped  when  you  had  meant  to  seize  her,  that 
was  no  reason  why  we  should  not  detain  her  if  she  touched 
at  any  of  our  ports.  You  agreed  with  me  in  this  view; 
and  you  drew  up  a  despatch  directing  the  Colonial  au- 
thorities to  detain  her  if  she  came  into  their  power. 

"If  this  order  had  gone  forth,  one  great  plea  of  the 
Americans  could  never  have  been  urged  against  us;  and 
the  American  claims  would  perhaps  have  never  been 
made  at  all. 

"But  what  happened?  When  you  brought  it  before  the 
Cabinet  there  was  a  perfect  insurrection.  Everybody  but 
you  and  I  were  against  the  proposed  step.  Bethell  was 
vehement  against  its  'legality,'  and  you  gave  it  up. 

"  Well,  now  I  keep  to  the  opinion  that  you  and  I  were 
right,  that  the  action  ought  to  have  been  taken,  and  that  the 
Cabinet  was  wrong. 

"The  correlative  of  this  opinion  is  that  America  had 
reason  and  right  in  complaining  that  the  Alabama  was 
received  in  all  our  ports,  and  that  so  far  we  were  in  the 
wrong."  l 

At  a  later  period,  this  eminent  statesman,  reflect- 
ing that  even  the  British  Arbitrator  had  found  Great 
Britain  responsible,  came  forward,  and  in  a  manly 

1  Walpole:  Life  of  Lord  John  Russell,  vol.  H,  p.  355. 


40  THE  GENEVA  TRIBUNAL 

spirit  took  upon  himself  the  blame.   These  are  his 
words:  — 

"I  assent  entirely  to  the  opinions  of  the  Lord  Chief 
Justice  of  England  that  the  Alabama  ought  to  have  been 
detained  during  the  four  days  in  which  I  was  waiting 
for  the  opinion  of  the  law  officers.  But  I  think  that  the 
fault  was  not  that  of  the  Commissioners  of  Customs;  it 
was  my  fault  as  Secretary  of  State  for  Foreign  Affairs."  x 

The  country  owes  a  debt  of  gratitude  to  President 
Lincoln  for  the  wisdom  with  which  he  corrected  the 
despatch,  prepared  by  Mr.  Seward,  at  the  time  of 
the  Trent  affair.  It  is  interesting  to  learn  from  a 
recently  published  life  of  Lord  Granville  that  the 
despatch  prepared  at  this  crisis  by  Lord  John  Rus- 
sell was  in  like  manner  by  another  hand  modified 
and  toned  down.2 

Of  late  years  more  than  one  American  writer  has 
asserted  that  our  statesmen  and  our  people  were 
during  war  times  led  into  error  in  supposing  that  the 
British  Government  were  really  in  'sympathy  with 
the  cause  of  secession.  We  may  concede  that  in 
public  affairs  of  magnitude  it  is  sometimes  danger- 
ous to  pass  judgment  upon  the  supposed  motives 
of  political  leaders.  It  is  only  fair  that  we  should 
listen  attentively  to  what  has  been  said  in  the  pre- 

1  Recolkctions  and  Suggestions,  p.  334. 

a  Life  of  Lord  Granville,  vol.  i,  p.  402.  A  lady  who  was  living  in 
London,  not  long  after  the  war,  and  who  met  Lord  John  Russell  in 
society,  has  told  me  that  she  had  more  than  once  heard  him  speak 
of  the  United  States  in  terms  of  bitter  dislike. 


ATTITUDE  OF  GREAT  BRITAIN      41 

raises  by  way  of  a  defence  of  the  British  Ministers. 
It  is  summed  up  nowhere  better,  perhaps,  than  in 
a  recent  article  on  the  subject  of  the  Confederate 
cruisers,  by  the  late  Goldwin  Smith,  whose  views 
upon  English  politics  are  always  entitled  to  great 
respect.  He  says:  — 

"  I  have  lived  a  good  deal  with  those  who  could  not  fail 
to  be  well  informed,  and  my  conviction  is  that  the  British 
Government  resolved  at  the  outset  on  a  strict  neutrality, 
and  firmly  adhered  to  that  resolution  to  the  end,  notwith- 
standing the  intrigues  of  the  Confederate  envoys  and  the 
solicitation  of  the  Emperor  of  the  French.  If  Gladstone 
thought  that  the  North  had  better  let  the  South  go,  look- 
ing forward  by  way  of  compensation  to  the  entrance  of 
Canada  into  the  Union,  it  by  no  means  follows  that  he 
voted  in  the  Cabinet  for  a  recognition  of  the  Confederacy 
or  actual  intervention  of  any  kind.  I  feel  pretty  sure  that 
he  did  not." 1 

What  is  here  said  may  without  question  be  ac- 
cepted as  expressing  the  honest  conviction  of  an 
acute  and  broad-minded  observer.  In  a  certain 
sense  one  may  agree  with  Goldwin  Smith.  But  his 
statement  does  not  prove  that  the  American  people 
were  mistaken.  The  belief  they  entertained  was 
that,  however  closely  the  Ministry  may  have  ad- 
hered to  the  strict  line  of  duty  (and  there  were 
instances  where  they  did  all  that  could  be  asked  for), 
a  majority  of  the  Cabinet  privately  cherished  a 
hope  for  the  success  of  the  Confederacy,  a  state 

1  Independent  (New  York),  April  10,  1902. 


42  THE  GENEVA  TRIBUNAL 

of  mind  that  could  not  but  influence  them  in  their 
administration  of  public  affairs.  This  belief,  upon  a 
calm  review  of  the  series  of  events  that  led  to  the 
escape  of  the  cruisers,  will  be  sustained,  particularly 
when  studied  in  the  light  of  information  that  may 
be  gathered  from  various  sources,  including  private 
conversations  with  persons  who  had  lived  where 
they  could  know  what  the  actors  in  those  events 
thought  and  desired.  In  a  word,  had  the  British 
Cabinet  earnestly  wished  that  the  South  should  not 
get  any  help  whatever  in  Great  Britain  or  her  colo- 
nies, no  Alabama  would  have  burned  upon  the  high 
seas  ship  after  ship  of  merchants  of  the  United  States. 

Our  Government  was  at  all  times  fairly  well  ad- 
vised of  the  state  of  feeling  prevailing  in  England; 
and  it  strained  every  nerve  to  keep  our  people  from 
insisting  on  retaliation.  The  signs  of  unfriendliness 
to  us  (some  of  which  we  have  mentioned)  were  a 
matter  of  daily  public  observation;  and  yet,  so  far  as 
America  could  discover,  not  a  hand  was  lifted  by  a 
British  official  to  put  a  stop  to  what  was  going  on. 

Mr.  Dudley,  our  Consul  at  Liverpool,  displayed 
a  most  commendable  vigilance  and  activity  in  his 
efforts  to  keep  Washington  supplied  with  correct 
reports.  Nor  could  any  one  have  exhibited  more 
promptitude,  coupled  with  a  quality  of  discretion 
and  self-restraint  of  the  highest  order,  than  our 
Minister,  Charles  Francis  Adams.  Yet  matters 
went  on  from  bad  to  worse.  No  wonder  that  Ameri- 
cans entertained  the  conviction  that  at  heart  Eng- 


ATTITUDE  OF  GREAT  BRITAIN      43 

land,  in  sympathy  with  the  private  feelings  of  her 
Ministers,  was  to  a  large  extent  imbued  with  a  spirit 
hostile  to  the  permanence  of  this  Republic. 

The  assertion  here  made  is  not  that  every  indi- 
vidual Englishman,  in  those  dark  hours,  wished  us 
ill.  Far  from  it.  Throughout  the  contest  we  were 
cheered  by  brave  words  from  Bright  and  from 
Forster,  from  Cobden  and  Stuart  Mill,  and  from 
other  generous-minded  public  men.  We  did  not  lack 
friends  in  the  British  press;  nor  had  we  to  wait  long 
to  realize  that  the  great  body  of  the  middle  class  was 
heartily  with  us.  The  cotton-spinners  of  the  North 
of  England,  though  sorely  tried,  deprived  as  they 
were  of  the  staple  product  from  which  they  earned 
their  living,  rejoiced  almost  to  a  man  in  the  progress 
of  the  Union  arms.  At  length,  when  the  world  began 
to  see  that  our  triumph  meant  the  wiping-out  of 
slavery,  we  were  encouraged  at  discerning  a  change 
in  public  sentiment  in  England.  We  more  and  more 
heard  words  outspoken  in  defence  of  the  cause  of  the 
United  States. 

Surely  enough  has  been  cited  by  way  of  proof  that 
the  people  of  the  United  States  in  their  time  of  need 
had  good  reason  to  complain  of  the  exhibition  by 
the  British  Government  of  an  unfriendly  feeling 
towards  the  cause  of  the  Union.  That  feeling  pro- 
duced an  effect  that  endured  long  after  the  war  had 
closed.  An  author,  writing  the  biography  of  one  of 
England's  worthiest  statesmen,  whose  book,  pub- 
lished as  late  as  1905,  has  this  to  say  of  Englishmen 


44  THE  GENEVA  TRIBUNAL 

who  opposed  the  submission  of  the  Alabama  Claims 
to  arbitration:  — 

"A  proud  nation,  still  largely  imbued  with  the  tradi- 
tions of  the  days  of  Lord  Palmerston,  and  with  influen- 
tial classes  still  animated  by  an  unreasonable  and  bitter 
dislike  of  the  United  States,  consented  but  unwillingly  to 
be  dragged  before  an  international  tribunal  without  pre- 
cedent in  the  history  of  nations,  and  under  circumstances 
in  which,  on  the  main  issue  at  least,  the  judgment  was 
certain  to  be  adverse.  The  biographer  of  Lord  Russell 
claims,  and  correctly  claims,  that  the  voice  of  the  nation 
in  June,  1872,  was  with  him  rather  than  with  Mr.  Glad- 
stone and  Lord  Granville."1 

If  these  people,  as  late  as  1872,  cherished  a  spirit 
of  animosity  —  how  friendly  could  they  have  been 
in  1861?  The  good  feeling  that  happily  exists  be- 
tween the  two  countries  to-day  almost  makes  it 
seem  ungracious  to  go  back  to  that  period  when  the 
United  States  was  disliked,  and  so  was  treated  in  an 
unfriendly  manner.  But  one  must  abide  by  "the 
truth  of  history."  The  American  people  can  forgive 
and  forget;  can  make  all  due  allowance  for  misun- 
derstandings, but  they  cannot  blind  themselves  to 
that  which  is  so  plainly  to  be  seen;  or,  whatever 
be  later-day  protestations  from  kindly  disposed  com- 
mentators, consent  to  have  it  go  upon  record  that 
the  unfriendliness,  of  which  they  once  experienced 
the  grievous  results,  had  in  reality  no  existence. 

1  Fitzmaurice:  Life  of  Earl  Granville,  vol.  ii,  p.  107;  citing  Spencer 
Walpole:  Life  of  Lord  John  Russell,  vol.  ii,  p.  365. 


CHAPTER  III 

THE    ALABAMA    CLAIMS  —  THE    TREATY    OF 
WASHINGTON 

THE  notoriety  gained  by  the  Alabama,  under  the 
command  of  Captain  Raphael  Semmes,  won  for  her 
the  honor  (or  as  Count  Sclopis  puts  it,  "the 
unenviable  privilege")  of  bestowing  the  name  of 
"Alabama  Claims"  upon  all  claims  preferred  by 
citizens  of  the  United  States  for  depredations  com- 
mitted on  the  high  seas  by  Confederate  cruisers 
generally.  The  building  and  equipping  of  this  for- 
midable ship,  manned  as  she  was  largely  by  English- 
men, together  with  the  flagrant  circumstances  of 
her  escape,  29  July,  1862,  from  Liverpool,  are  facts 
that  we  can  assume  to  be  perfectly  familiar  to  the 
reader. 

From  time  to  time,  as  news  arrived  of  the  plunder 
and  the  burning  by  the  Alabama  of  one  ship  after  an- 
other, our  merchants  became  incensed  beyond  mea- 
sure; and  there  was  not  a  soldier  at  the  front,  nor 
a  sailor  on  blockade,  whose  wrath  was  not  kindled 
against  the  English  Government.  Other  cruisers 
were  sent  afloat,  the  responsibility  of  whose  career 
of  destruction,  it  was  fully  believed,  should  be  laid 
at  England's  door.  This  Confederate  Navy,  of  Eng- 
lish origin,  holds  a  prominent  place  in  the  foreground 


46  THE  GENEVA  TRIBUNAL 

of  the  picture  of  those  historic  times.  It  accom- 
plished its  work  swiftly  and  surely.  The  commerce 
of  the  United  States  was  almost  totally  wiped  out  of 
existence. 

Irritation  and  anger  increased  apace  when  our 
people  saw  England  rapidly  gaining  the  greater  part 
of  the  carrying-trade  which  we  had  lost;  and  lost, 
too,  as  we  conceived,  directly  through  her  wrong- 
doing. Destruction  so  great  in  amount  had  inflicted 
an  hi  jury  too  serious  to  be  tamely  submitted  to,  or 
to  be  deemed  capable  of  easy  reparation.  Merchants 
whose  ships  had  been  burned,  or  who  had  owned 
cargoes  which  never  reached  port,  sea  captains  and 
sailors,  as  well  as  insurers,  constituted  a  class  that 
daily  pressed  upon  the  Government  their  complaints 
for  damages.1  The  sufferer  talked  of  his  wrongs  to 
his  friends  and  neighbors;  and  thus  was  extended 
and  intensified  a  demand  for  redress  already  strenu- 
ous. The  claims  growing  out  of  these  depredations 
had  become  a  stern  legacy  of  the  war.  So  long  as  the 
reclamations  continued  to  be  unadjusted,  they  kept 
alive  and  fomented  an  irritation  between  the  two 
great  maritime  powers  of  the  world,  which,  as 

1  The  first  memorial  entered  upon  the  files  of  the  Department  of 
State  was  that  of  the  owners  of  the  Harvey  Birch,  burned  by  the 
Nashville,  16  November,  1861.  Copies  of  the  papers  were  sent  to 
Mr.  Adams  and  by  him  transmitted  to  Earl  Russell  with  a  letter 
asking  for  redress.  These  demands  were  sent  singly  in  each  case  for 
a  while.  At  last  as  new  losses  were  incurred  the  facts  were  brought 
to  the  notice  of  the  English  without  description,  which  was  by  con- 
sent deferred. 


THE  TREATY  OF  WASHINGTON     47 

already  stated,  threatened,  at  more  than  one  critical 
moment,  to  end  in  war. 

This  much  has  been  said  of  the  origin  of  the 
"Alabama  Claims"  in  order  that  the  reader  may 
gain  some  conception  of  the  gravity  of  the  task  that 
was  presented  when  public  men  on  either  side  of 
the  Atlantic,  deploring  the  situation  and  anxious  for 
peace,  sought  to  venture  upon  taking  the  prelimin- 
ary steps  to  effect  a  settlement  such  as  might  allay 
further  irritation  and  command  the  approval  of 
both  peoples. 

When,  in  March,  1869,  General  Grant  assumed 
office  as  President  of  the  United  States,  he  found 
the  question  of  the  "Alabama  Claims"  at  the  height 
of  its  disturbing  influence.  Hamilton  Fish  of  New 
York  reluctantly  accepted  the  position  of  Secretary 
of  State.  Upon  Mr.  Fish  rested  the  responsibility  of 
dealing  with  this  serious  problem.  As  might  have 
been  foreseen,  the  subject  already  had  provoked  on 
either  side  of  the  Atlantic  many  a  heated  public  dis- 
cussion. Four  years  had  gone  by,  leaving  no  visible 
sign  of  progress  toward  a  settlement.  Moreover, 
there  were  those — not  few  in  number — who,  seeing 
behind  this  question  the  spectre  of  war,  refused  to 
believe  that  a  peaceful  way  could  possibly  be  con- 
trived out  of  the  danger.1 

1  Mr.  Pierce,  in  his  Life  of  Sumner  (vol.  iv,  p.  269),  is  authority 
for  the  statement  that  Sir  Frederick  Bruce,  then  Minister  at  Wash- 
ington, at  a  dinner-party  near  Christmas,  1865,  said  to  Mr.  Sumner 


48  THE  GENEVA  TRIBUNAL 

In  the  summer  of  1868  Mr.  Reverdy  Johnson  of 
Maryland  had  succeeded  Mr.  Adams  as  our  Minis- 
ter to  England.  He  had  long  borne  the  reputation 
of  being  one  of  the  ablest  lawyers  in  the  Union.  He 

that  England  would  fight  before  she  would  pay  a  dollar,  or  consent 
to  arbitration.  The  Portuguese  precedent  had  settled  opinion  in 
England;  until  that  was  answered  the  United  States  had  no  case. 

The  reader  is  referred  to  an  article  in  the  Law  Magazine  (London) 
for  November,  1874,  "International  Courts  of  Arbitration,"  by 
Thomas  Balch,  afterwards  printed  in  pamphlet  form  in  this  country 
and  reprinted  in  1899,  at  Philadelphia.  He  will  find  therein  notes  of 
an  interview  between  the  author  and  President  Lincoln,  that  took 
place  in  November,  1864,  at  which  the  former  suggested  an  arbitra- 
tion court  for  the  settlement  of  our  troubles  with  England.  Mr. 
Lincoln  said:  "Start  your  idea.  It  may  make  its  way  in  time,  as  it 
is  a  good  one."  The  next  month,  on  arriving  at  London,  Mr.  Balch 
broached  the  subject  to  friends,  but  nobody  gave  it  encouragement 
except  Mr.  Cobden. 

Mr.  Balch,  a  member  of  the  Philadelphia  Bar,  then  temporarily 
residing  at  Paris,  had  sent  to  the  New  York  Tribune  a  letter, 
printed  13  May,  1865,  in  which  he  recommended  a  plan  of  arbitra- 
tion, almost  identical  with  that  adopted,  six  years  later,  in  the 
Treaty  of  Washington.  Professor  James  Lorimer  (1818-1890),  hold- 
ing the  chair  of  Public  Law  and  of  the  Law  of  Nations  in  the  Uni- 
versity of  Edinburgh,  styled  this  letter  "a  very  remarkable  anti- 
cipation of  the  Treaty."  The  Alabama  Arbitration,  by  Thomas 
Willing  Balch  (Philadelphia,  1900),  p.  49. 

The  latter  writer  (a  son  of  Thomas  Balch)  has  treated  of  the 
march  of  great  events  leading  up  to  the  proceedings  at  Geneva,  in 
this  valuable  little  book  —  a  preliminary  study,  it  is  understood, 
to  a  larger  work  on  international  arbitration,  now  in  preparation. 
A  note,  at  page  5,  is  well  worth  appending  here:  — 

"  The  Alabama  was  known  as  the  '290,'  because  she  was  the  two 
hundred  and  ninetieth  vessel  that  the  Lairds  built.  It  is  a  curious 
coincidence  that  when,  a  few  years  since,  Mr.  Herbert,  then  Secre- 
tary of  the  Navy  of  the  United  States,  was  to  name  one  of  the  great 


THE  TREATY  OF  WASHINGTON      49 

had  been  popular  with  his  recent  associates  in  the 
Senate.  This  mission  was  his  first  experience  in  a 
diplomatic  capacity.  Always  sanguine,  Secretary 
Seward  was  ambitious  to  gain  before  retiring  from 
office  the  credit  of  getting  these  troublesome  claims 
out  of  the  way.  The  newly  appointed  Minister, 
animated  by  like  hopes,  met  Lord  Clarendon,  and 
entered  with  him  upon  the  conduct  of  negotiations 
to  such  speedy  purpose  that  on  14th  January,  1869, 
an  agreement  was  signed,  known  as  the  Johnson- 
Clarendon  Convention.  This  Convention  put  for- 
ward our  demands  as  private  claims  only,  suscep- 
tible of  being  set  off,  at  least  in  part,  by  claims  of 
British  citizens  against  us,  growing  out  of  the  opera- 
tions of  the  war.  All  claims  for  national  injury  had 
disappeared.  Nor  was  there  a  word  of  regret  for 
what  we  had  suffered  at  the  hands  of  England. 

President  Johnson  promptly  sent  the  Convention 
to  the  Senate.  As  soon  as  the  terms  of  this  instru- 
ment became  public,  it  was  apparent  to  everybody 
that  neither  Secretary  Seward  nor  our  representa- 
tive at  St.  James's  had  understood  the  temper  of 
the  American  people.  When,  hi  April,  the  proposed 
Treaty  came  to  the  test  of  ratification,  but  one  soli- 
tary vote  was  cast  in  its  favor.1 

battleships  building  at  Philadelphia  by  the  Cramps,  he  called  her 
after  his  native  state,  the  Alabama,  and  she,  too,  though  quite 
unknown  to  the  Secretary,  was  the  two  hundred  and  ninetieth  ship 
that  the  Cramps  built,  and  was  recorded  in  their  book  as  '  No. 
290.' " 

1  By  Thomas  Clay  McCreery,  of  Kentucky. 


50  THE  GENEVA  TRIBUNAL 

The  Chairman  of  the  Committee  on  Foreign  Rela- 
tions of  the  Senate  at  that  time  was  Charles  Sum- 
ner  (1811-1874)  of  Massachusetts,  who  had  held 
the  position  for  eight  years.  In  executive  session 
Mr.  Sumner  delivered  a  long  and  elaborate  speech  hi 
condemnation  of  the  Treaty.  No  speech  was  neces- 
sary. The  Treaty  was  doomed;  but  Mr.  Sumner 
could  not  keep  silent.  Later,  the  seal  of  secrecy 
being  removed,  copies  of  what  was  known  as  "Mr. 
Sumner's  great  speech"  were  spread  broadcast  over 
the  country.  It  was  a  startling  indictment.  In  fer- 
vent, not  to  say  extravagant,  rhetoric,  it  charged 
the  British  Government  with  precipitancy  in  re- 
cognizing the  belligerent  rights  of  the  Confederate 
States;  with  negligently  allowing  a  ship  to  escape 
that  had  been  built,  manned,  and  equipped  hi  Eng- 
land, and  further  with  giving  her  hospitality  and 
supplies  in  British  ports.  "Thus,"  exclaimed  the 
Senator,  "her  depredations  and  burnings,  making 
the  ocean  blaze,  all  proceeded  from  England,  which 
by  three  different  acts  lighted  the  torch.  To  England 
must  be  traced  the  widespread  consequences  which 
ensued."  1 

This  much,  allowing  for  oratorical  ardor,  might 
well  enough,  from  one  point  of  view,  have  been  put 
forward.  But  Sumner  went  further.  He  assessed 
the  damages  at  an  enormous  figure.  Besides  fifteen 
million  dollars  for  vessels  destroyed,  he  set  the  loss 
to  the  carrying  trade  at  one  hundred  and  ten  mil- 

1  Mr.  Fish  and  the  Alabama  Claims,  p.  111. 


THE  TREATY  OF  WASHINGTON      51 

lion  dollars,  and  then  went  on  to  compute  the  na- 
tional losses,  caused  by  the  prolongation  of  the  war. 
The  Senator  held  England  responsible  for  the  dura- 
tion of  the  conflict,  —  "  through  British  interven- 
tion the  war  was  doubled  in  duration."  He  named 
four  thousand  million  dollars  ($4,000,000,000)  as  the 
cost  of  suppressing  the  rebellion.  "  Everybody  can 
make  the  calculation. "l 

The  student  of  the  diplomatic  history  of  the 
United  States  will  find  few  chapters  more  interest- 
ing or  profitable  [than  that  which  deals  with  the 
conduct  and  bearing  of  Charles  Sumner  in  his  treat- 
ment of  the  "Alabama  Claims,"  from  the  close  of  the 
war  down  to  the  proclaiming,  in  1871,  of  the  Treaty 
of  Washington.  Mr.  Sumner  knew  England.  For 
years  he  had  been  on  terms  of  friendly  correspond- 
ence with  more  than  one  of  her  foremost  public  men. 
From  personal  interviews,  and  from  frequent  let- 
ters, he  had  been  able  to  possess  himself  of  a  store  of 
information  which  was  of  special  value  to  him  in  the 
process  of  arriving  at  correct  views  of  our  foreign 
affairs  in  respect  to  Great  Britain.  The  position  of 
Chairman  of  the  Committee  on  Foreign  Relations 
of  the  Senate,  it  need  not  be  added,  was  thoroughly 
to  his  taste.  Preeminently  a  student,  Mr.  Sumner 
was  well  equipped,  so  far  as  the  literature  of  diplo- 
macy was  concerned.  But  the  Massachusetts  Sena- 
tor, it  must  be  confessed,  knew  little  of  the  art  of 
getting  along  with  other  men.  His  want  of  tact  was 

1  Sumner's  Works,  vol.  xiii. 


52  THE  GENEVA  TRIBUNAL 

conspicuous.  Moreover,  Mr.  Sumner's  demeanor 
was  not  always  such  as  to  win  him  friends.  He  was 
overbearing.  He  was  intolerant  of  views  that  dif- 
fered from  his  own,  even  though  expressed  by  an 
intimate  companion.  Those  who  knew  him  well 
discovered  that  he  could  prove  quite  as  tenacious  of 
his  own  opinion  as  he  was  lacking  in  the  qualities  of 
constructive  statesmanship.  Mr.  Sumner,  although 
a  profound  student  of  the  law,  was  never  a  lawyer.1 
The  subject  of  the  "Alabama  Claims"  he  had 
approached,  as  he  did  most  other  subjects,  from  the 
standpoint  of  the  student,  and  not  from  that  of  the 
man-of-affairs.  High-minded  and  of  lofty  integrity, 
an  intense  lover  of  his  country,  this  earnest  scholar 
in  politics  would  on  a  moral  issue  stir  the  multitude 
as  few  other  orators  could;  but  he  was  completely 
out  of  place  as  a  leader  in  a  campaign  such  as  this, 

1  A  story  of  Sumner,  at  the  Harvard  Law  School,  used  to  be 
floating  around  the  school  when,  a  generation  later,  I  was  a  student 
there.  It  seems  that  Sumner  was  Librarian  of  the  Law  School, 
between  1831  and  1833.  One  day,  while  he  and  two  or  three  other 
young  students  were  in  the  library,  the  sound  reached  them  of  foot- 
steps in  the  hall.  Sumner  said  to  his  companions:  "  That's  Ashmun 
coming;  wait,  and  you'll  see  that  I  get  a  compliment  out  of  him." 
(John  Hooker  Ashmun,  Harvard,  1818,  was  a  man  of  extraordinary 
gifts.  He  was  of  such  brilliant  promise  that,  in  1829,  when  not 
thirty  years  old,  he  filled  admirably  the  chair  of  Royall  Professor  of 
Law.  This  professorship  he  held  until  his  death,  in  1833.)  It  was 
Ashmun,  who  asked,  upon  entering,  "  Well,  Sumner,  how  are 
you  to-day  ?  "  "  In  the  best  of  health,"  replied  the  librarian,  "  but, 
Professor  Ashmun,  really  do  you  know  sometimes  I  more  than  half 

suspect  that  I'll  never  make  a  lawyer."  "  No,  by  G ,  you  never 

will,"  was  the  unexpected  rejoinder. 


THE  TREATY  OF  WASHINGTON      53 

where  a  problem  was  pressing  for  solution  that  had 
vexed  the  keenest  minds  of  the  Union  —  a  problem 
involving  great  pecuniary  interests,  and  demanding 
of  him  who  would  deal  with  it  a  thorough  knowledge 
of  human  nature,  no  less  than  a  nice  perception  of 
opportunities  —  in  a  word,  the  highest  skill  of  the 
diplomatist  and  the  statesman.1 

1  The  relation  of  Mr.  Sumner  to  the  Administration,  in  respect  to 
the  "Alabama  Claims,"  is  discussed  in  a  valuable  little  book,  from 
the  pen  of  J.  C.  Bancroft  Davis,  published  in  1893,  entitled  Mr. 
Fish  and  the  Alabama  Claims  —  a  Chapter  in  Diplomatic  History. 
Where  any  statement  therein  is  not  entirely  in  harmony  with  that 
brought  forward  by  Mr.  Pierce,  the  biographer  of  Sumner,  I  am 
bound  to  say  that  I  have  placed  full  faith  in  the  accuracy  of  what 
Mr.  Davis  has  written. 

Another  writer  may  be  named  who  has  treated  this  topic  with 
marked  ability,  as  a  part  of  a  narrative  of  historical  events  con- 
nected with  the  negotiation  of  the  Treaty  of  Washington.  Mr. 
Charles  Francis  Adams  (son  of  our  former  Minister  to  England, 
the  American  Arbitrator)  delivered  before  the  New  York  Histor- 
ical Society,  19  November,  1901,  an  address  dealing  with  the  sub- 
ject of  the  Treaty.  This  address  the  author  later  expanded  into 
"The  Treaty  of  Washington,  Before  and  After,"  which  forms  a 
substantial  part  of  a  volume  entitled  Lee  at  Appomattox,  and  Other 
Papers.  (Boston  and  New  York,  1902,  second  edition  enlarged, 
1903.)  Mr.  Adams  writes  with  plenty  of  vigor.  He  is  not  at  a  loss 
for  original  ways  of  looking  at  historical  occurrences;  and  he 
evidently  has  studied  his  subject  exhaustively  before  reaching  his 
conclusions.  Whether  agreeing  with  him  or  not,  one  cannot  fail 
to  admire  the  force  and  the  sturdiness  with  which  this  patriotic 
writer,  who  does  his  own  thinking,  and  who  is  an  American  through 
and  through,  maintains  a  position  which  he  has  once  taken  up. 
Occasionally  he  is  inclined  to  severity  in  his  criticisms. 

Professor  John  Bassett  Moore,  of  Columbia  University  (formerly 
Assistant  Secretary  of  State),  has  treated  the  subject  of  the  Geneva 
Arbitration  with  as  much  fulness  as  was  permissible  in  his  History 


54  THE  GENEVA  TRIBUNAL 

Of  course  Mr.  Sumner  was  here  taking  up  an 
extreme  position.  The  Chairman  of  the  Committee 
on  Foreign  Relations  of  the  Senate,  when  of  a  like 
political  party  with  the  Administration,  is  supposed 
to  reflect  the  views  of  the  President.  These  utter- 
ances of  the  Massachusetts  Senator,  given  to  the 
public  just  as  the  new  Administration  was  beginning 
to  define  its  policy,  were  naturally  everywhere  re- 
garded as  indicating  the  stand  taken  by  President 
Grant  and  his  Secretary  of  State,  Hamilton  Fish. 
As  a  matter  of  fact,  however,  no  one  was  more  sur- 
prised than  they  at  the  deliverance  of  this  remark- 
able speech.  Neither  the  President  nor  the  Secre- 
tary knew  that  such  a  speech  was  to  be  made.1  Its 
tone  heralded  war,  instead  of  turning  men  toward 
a  peaceful  settlement. 

True,  the  President  and  the  Secretary  had  been  of 
the  opinion  that  the  precipitancy  displayed  by  the 
British  Government  to  recognize  belligerent  rights 
on  the  part  of  the  rebels,  disclosed  an  unfriendly  pur- 
pose. But  England  possessed  the  right,  as  does 
every  sovereign  power,  to  issue  a  proclamation  of 

and  Digest  of  the  International  Arbitrations  to  which  the  United  States 
has  been  a  Party  (Washington,  1898),  vol.  i,  chap.  xiv.  It  would 
be  superfluous  to  praise  this  gentleman's  work.  His  treatment  has 
the  advantage  of  the  writer's  familiarity  with  the  details  of  other 
arbitrations,  and  with  the  traditions  of  the  Department  of  State. 
Professor  Moore  has  condensed  his  material  into  158  pages,  with 
the  result  that  the  recital  is  excellent,  both  in  respect  to  arrange- 
ment and  style.  The  History  and  Digest  deservedly  takes  rank  as  an 
authority  of  the  highest  value. 

1  Mr.  Fish  and  the  Alabama  Claims,  pp.  7,  8,  23. 


THE  TREATY  OF  WASHINGTON      55 

this  character  to  her  subjects,  whenever  she  might 
choose  so  to  do.  The  President,  whatever  his  opin- 
ion as  to  England's  course,  was  of  a  determination 
now  to  act  prudently,  and  in  a  manner  best  calcu- 
lated to  bring  about  an  honorable  settlement  of 
every  cause  of  estrangement  between  the  two  coun- 
tries. He  did  not  relish  the  prospect  of  having  his 
hand  forced.  Charged  with  the  duty  of  bringing 
about  a  settlement,  the  Administration  could  view 
with  slight  favor  a  fulmination  against  Great  Britain 
of  a  demand  mounting  into  enormous  figures,  —  as 
a  preliminary  to  proposing  an  agreement  to  arbitrate. 
"It  is  not  necessary  to  waste  words  to  prove  that 
such  a  doctrine,  if  supported  by  the  Administration, 
would  have  shut  the  door  against  future  negotia- 
tion."* 

At  the  date  when  this  high-sounding  speech  was 
given  to  the  world,  the  President,  upon  Mr.  Sum- 
ner's  request,  had  already  decided  to  send  Mr.  John 
Lothrop  Motley  to  England.  The  reader  who  re- 
calls the  circumstances  of  Mr.  Motley's  arrival  at 
London  is  aware  that  that  accomplished  man-of- 
letters  took  a  step  in  his  new  capacity  at  once  un- 
usual and  unfortunate. '..  Seeking  an  interview  with 
Lord  Clarendon  he  said,  among  other  things,  that 
the  President,  when  our  case  should  once  more  be 
presented,  wished  the  British  proclamation  to  be 
used  "as  being  the  fountain-head  of  the  disasters 
which  had  been  caused, to  the  American  people, 

1  Mr.  Fish  and  the  Alabama  Claims,  p.  7.  / 


56  THE  GENEVA  TRIBUNAL 

both  individually  and  collectively,  by  the  hands  of 
Englishmen."  Mr.  Motley  is  seen  to  have  been  thor- 
oughly committed  to  Mr.  Simmer's  extreme  views; 
and  he  actually  disregarded  the  instructions  prepared 
with  the  greatest  care  for  him  at  the  Department  of 
State.  Not  only  in  conversation  but  in  writing  Lord 
Clarendon  learned  from  our  new  Minister  that  the 
demands  formulated  in  the  speech  of  Mr.  Motley's 
friend,  Senator  Sumner,  were  to  be  taken  as  the 
measure  of  what  the  United  States  Government  had 
determined  to  require  of  Great  Britain.  This  was 
doing  precisely  what  Mr.  Motley  had  been  directed 
not  to  do. 

Mr.  Fish,  to  his  credit  be  it  said,  displayed  a  most 
exemplary  patience.  He  had  a  great  deal  to  contend 
with  hi  the  unwarranted  attitude  assumed  by  our 
accredited  representative  at  London.  For  a  while 
the  Secretary,  in  the  hope  of  averting  a  crisis,  suc- 
ceeded in  restraining  the  hand  of  the  President, 
whose  impulse  it  was  instantly  to  recall  Mr.  Motley. 
No  further  service,  however,  in  this  business  was 
required  of  the  Minister.  The  field  of  negotiations 
was  transferred  to  Washington,  but  Mr.  Motley  con- 
tinued at  his  post  until  some  time  in  July,  1870. 

From  the  outset  the  Secretary  of  State  had  kept 
clearly  in  mind  the  terms  upon  which  the  United 
States  would  have  to  take  a  stand.  Happily,  Mr. 
Fish  was  endowed  with  the  faculty  of  being  able  to 
divine  how,  and  at  what  time,  to  yield  somewhat, 
while  preserving  the  essentials.  It  is  by  no  means  a 


THE  TREATY  OF  WASHINGTON      57 

common  gift,  —  the  intuitive  perception  of  the  limits 
to  which  one  may  extend  the  policy  of  surrender,  and 
at  the  same  time  retain  the  confidence,  and  satisfy 
the  expectations,  of  those  whose  interests  are  at 
stake.  Firm  of  purpose,  yet  with  the  calmness  and 
courtesy  that  attend  high-breeding,  Hamilton  Fish 
was  precisely  the  man  to  be  entrusted  with  the  task 
of  attaining  fair  and  honorable  results  from  a  state 
of  international  affairs  exceptionally  complicated, 
and  therefore  extremely  dangerous. 

In  the  summer  of  1869,  Sir  John  Rose  (later  a 
resident  of  London  and  partner  hi  the  banking- 
house  of  Morton,  Rose  and  Company)  had  visited 
Washington  for  the  ostensible  purpose  of  establish- 
ing commercial  arrangements  between  the  United 
States  and  Canada.  His  real  object,  we  now  know, 
was  to  ascertain  what  might  be  effected  in  the  direc- 
tion of  bringing  to  a  settlement  the  "Alabama 
Claims."  At  that  date  Sir  John  was  a  member  of  the 
Ministry  in  Canada.  He  was  well  known  in  Wash- 
ington as  the  Commissioner  on  the  part  of  Great 
Britain  to  settle  the  Hudson's  Bay  and  Puget  Sound 
Companies'  claims  against  the  United  States,  under 
the  Treaty  of  1863,  an  office  which  he  still  held.  The 
counsel  for  the  United  States  before  this  Commis- 
sion was  Caleb  Gushing,  whose  experience  and 
learning  in  the  law  of  nations  had  upon  sundry  oc- 
casions been  put  at  the  service  of  the  Department  of 
State.  To  the  intimacy  that  had  sprung  up  between 
Sir  John  Rose  and  the  astute  Gushing  may  be 


58  THE  GENEVA  TRIBUNAL 

traced  much  of  the  inspiration  of  the  former's 
visit. 

Alike  from  temperament  and  from  experience,  this 
newcomer  upon  the  scene  of  action  was  well  fitted 
for  his  mission.  He  was  received  by  Mr.  Fish  in  a 
frank  and  cordial  manner.  The  two  men  had  no  dif- 
ficulty hi  understanding  each  other.  The  fate  of  the 
Johnson-Clarendon  Convention  was,  however,  too 
recent  hi  the  public  mind  to  admit  of  the  thought 
that  anything  could  be  accomplished  at  that  junc- 
ture further  than  to  exchange  expressions  of  personal 
good-will.  It  should  be  explained  that  hi  addition 
to  the  movement  by  Sir  John  Rose,  conferences  with 
a  like  object  in  view  had  from  time  to  time  taken 
place  between  the  British  Minister  at  Washington, 
Sir  Edward  Thornton  l  and  Secretary  Fish. 

Meanwhile  President  Grant  took  a  step  designed 
to  exercise  a  quickening  influence  upon  the  Ministry 
across  the  water.  In  his  annual  message  of  Decem- 
ber, 1870,  after  informing  the  Congress  that  the 
British  Government  appeared  unwilling  to  concede 
that  it  had  been  guilty  of  any  act  for  which  the 

1  Sir  Edward  Thornton  (1817-1906)  was  a  man  whom  it  was 
always  a  pleasure  to  meet.  He  was  later  made  one  of  the  British 
High  Commissioners  to  draft  the  Treaty.  The  departure  from 
Washington  of  himself  and  family,  a  few  years  later,  was  sincerely 
regretted  by  their  numerous  friends.  Sir  Edward,  in  his  thirteen 
years  of  residence,  had  almost  come  to  be  regarded  as  a  citizen,  so 
completely  had  he  adapted  himself  to  his  surroundings;  and  yet  no 
Minister  could  have  served  his  country  with  a  more  untiring  and 
single-hearted  devotion. 


THE  TREATY  OF  WASHINGTON      59 

United  States  had  just  cause  of  complaint,  the  Presi- 
dent recommended  the  appointment  of  a  commis- 
sion to  take  proof  of  the  ownership  and  amount  of 
the  claims  of  individuals;  and  further,  that  author- 
ity be  given  for  the  United  States  to  settle  the 
claims  with  the  owners,  so  that  the  Government 
itself  might  hold  in  ownership  all  the  private  claims. 
Congress,  however,  enacted  no  legislation  by  way  of 
carrying  this  proposal  into  effect. 

This  is  not  the  place  to  speak  of  the  ill-fated  Santo 
Domingo  Treaty,  nor  of  the  tide  of  feeling  that  the 
pendency  of  that  measure  in  the  Senate  set  in  mo- 
tion. A  good  deal  was  said  at  the  time  that  might 
well  have  been  foregone.  It  will  be  remembered  that 
because  of  a  misunderstanding  in  regard  to  this 
Treaty,  the  personal  relations  between  President 
Grant  and  Senator  Sumner,  already  strained,  had 
become  a  topic  of  wide  public  comment.  The  season 
thus  proving  inopportune  for  starting  negotiations 
between  this  country  and  England,  persons  upon 
either  side  of  the  Atlantic  who  anxiously  desired  an 
amicable  settlement  could  do  little  more  than  watch 
the  course  of  events,  and  quietly  await  develop- 
ments. Not  until  the  opening  of  the  year  1871  did 
public  affairs  begin  to  shape  themselves,  so  that  the 
friendly  understanding  between  Sir  John  Rose  and 
Secretary  Fish  could  be  advanced  into  a  condition 
which  may  be  said  to  have  taken  on  an  official 
status. 

On  the  9th  of  January,  1871,  Sir  John  Rose  ar- 


60  THE  GENEVA  TRIBUNAL 

rived  at  Washington,  in  a  confidential  capacity,  as 
the  officially  accredited  agent  of  the  British  Govern- 
ment.1 

Mr.  Fish  took  occasion  to  ascertain  what  were  the 
views  then  held  by  Mr.  Sumner,  as  to  what  hi  any 
event  should  be  required  of  England's  representa- 
tive. Senator  Sumner,  among  other  propositions, 
laid  down  the  requirement  that  Great  Britain 
should  withdraw  her  flag  from  Canada;  and  in  order 
"to  make  the  settlement  complete,  the  withdrawal 
should  be  from  this  hemisphere,  including  provinces 
and  islands."  Such  a  demand,  it  is  hardly  needful 
to  declare,  was  utterly  out  of  the  question .  When  the 
Forty-Second  Congress  had  begun,  on  the  fourth 
of  March,  with  the  new  session  of  the  Senate,  the 
Republican  Senators,  in  order  to  secure  harmony 
of  action,  removed  Mr.  Sumner  from  the  chairman- 

1  Mr.  Fish  and  the  Alabama  Claims,  p.  59. 

"  We  are  taking  several  bites  at  that  big  cherry  —  reconciliation 
with  the  States.  I  have  sent  Sir  John  Rose  to  New  York  and  Wash- 
ington, to  do  that  which  it  is  difficult  for  Thornton  to  do  without 
committing  us.  He  is  to  go  on  his  own  commercial  business.  He  is 
to  have  no  authority,  but  a  boast  that  he  was  intimate  with  me 
when  I  was  in  the  Colonial  Office.  He  is  to  ascertain  from  the  Gov- 
ernment and  from  the  Opposition  what  chance  there  is  of  our 
simultaneously  agreeing  to  some  beginning  of  a  negotiation,  if  it 
were  only  to  assent  to  a  Joint  Commission,  who,  without  being 
commissioned  to  settle  anything,  might  arrange  in  what  manner 
each  question  in  discussion  might  be  best  considered.  I  have  confi- 
dence in  his  tact  and  discretion.  He  knows  the  States,  and  has  the 
confidence  of  Sir  John  Macdonald.  We  of  course  wish  Rose's  mis- 
sion to  be  a  perfect  secret."  Granville  to  Bright,  18  December, 
1870;  Life  of  Granville,  vol.  ii,  p.  29. 


THE  TREATY  OF  WASHINGTON      61 

ship  of  the  Committee  on  Foreign  Relations,  and 
conferred  the  position  upon  the  next  ranking  Sen- 
ator, Simon  Cameron,  of  Pennsylvania.  This  pro- 
ceeding caused  a  stir  throughout  the  country,  and 
by  many  people  at  the  time  was  greatly  misunder- 
stood.1 


1  Even  so  late  as  1906,  a  writer  of  history,  usually  careful,  asserts 
that  "  the  moving  spirit  in  the  affair  was  Grant,  and  the  real  cause 
of  the  deposition  was  the  share  Sumner  had  had  in  the  defeat  of  the 
San  Domingo  scheme,  and  the  unhappy  incidents  that  followed  in 
its  train."  James  Ford  Rhodes:  History  of  the  United  States,  vol.  vi, 
p.  362. 

Mr.  Rhodes,  we  think,  does  injustice  to  President  Grant,  who  was 
incapable  of  acting  upon  the  motives  here  attributed  to  him.  Ban- 
croft Davis,  who  knew  the  facts  personally,  assigns  the  true  cause  in 
his  Mr.  Fish  and  the  Alabama  Claims  (1893).  Harmony  could  not 
be  maintained  between  the  Chairman  of  the  Committee  on  For- 
eign Relations  and  the  Secretary  of  State.  Who  was  to  blame  can 
readily  be  surmised  by  those  who  knew  the  two  men.  The  incident 
that  shocked  Washington  —  Mr.  Sumner's  refusing  to  shake  hands 
with  Mr.  Fish,  at  a  dinner-party  at  General  Schenck's  —  was  only 
the  culmination  of  a  series  of  acts  on  the  part  of  the  Massachusetts 
Senator  of  an  overbearing  insolence,  of  which  it  is  unpleasant  to 
revive  a  memory. 

Surely  few  of  his  contemporaries  in  public  life  better  knew 
Charles  Sumner's  nature,  or  had  larger  opportunity  to  watch  his 
behavior,  than  his  sometime  colleague  in  the  Senate,  the  late  Gov- 
ernor Boutwell.  He  says:  "  Mr.  Sumner's  removal  from  the  chair- 
manship of  the  Committee  on  Foreign  Relations  was  due  to  the 
fact  that  a  time  came  when  he  did  not  recognize  the  President,  and 
when  he  declined  to  have  any  intercourse  with  the  Secretary  of 
State,  outside  of  official  business.  .  .  . 

"  Mr.  Sumner  never  believed  in  General  Grant's  fitness  for  the 
office  of  President,  and  General  Grant  did  not  recognize  in  Mr. 
Sumner  a  wise  and  safe  leader  in  the  business  of  government.  Gen- 


62  THE  GENEVA  TRIBUNAL 

Finally,  after  an  exchange  of  notes,  the  two  Gov- 
ernments by  their  representatives  reached  an  agree- 
ment in  the  month  of  January,  1871,  that  a  Joint 
High  Commission  should  be  constituted,  with  power 
to  treat  of  all  the  subjects  of  controversy  then 
pending  between  the  two  countries.  It  was  fittingly 
stipulated  that  this  distinguished  body  should  meet 
at  Washington. 

Her  Majesty's  Government  caused  it  to  be  known 
that  they  had  resolved  to  entrust  the  grave  and  hon- 
orable duty  of  serving  upon  this  Commission  to  per- 
sonages of  eminent  distinction;  nor  was  the  compli- 
ment lost  upon  the  people  of  the  United  States. 
Great  Britain  selected  as  Commissioners  Earl  de 
Grey  and  Ripon,  President  of  the  Council  and  a 
member  of  Mr.  Gladstone's  Cabinet;  Sir  Stafford 
Northcote,  later  Lord  Iddesleigh;  Sir  Edward 
Thornton,  British  Minister  to  the  United  States; 
Mountague  Bernard,  Professor  of  International  Law 
at  Oxford;  and  Sir  John  Alexander  Macdonald,  Pre- 
mier of  Canada.  For  Secretary  an  excellent  selection 
was  made,—  that  of  Lord  Tenterden,  Under-Secre- 
tary  of  State  for  Foreign  Affairs. 

On  the  part  of  the  United  States,  the  Joint  High 
Commissioners  were  Hamilton  Fish,  Secretary  of 

eral  Grant's  notion  of  Mr.  Sumner,  on  one  side  of  his  character,  may 
be  inferred  from  his  answer,  when  being  asked  if  he  had  heard  Mr. 
Sumner  converse,  he  said,  'No,  but  I  have  heard  him  lecture.' " 
George  S.  Boutwell:  Sixty  Years  in  Public  Affairs  (1902),  vol.  ii, 
p.  214. 


THE  TREATY  OF  WASHINGTON      63 

State;  Robert  Gumming  Schenck,  of  Ohio,  a  man  of 
remarkable  talent,  who  had  served  with  distinction 
in  the  House  of  Representatives,  and  now  had  just 
been  appointed  Minister  to  Great  Britain,  to  suc- 
ceed Mr.  Motley;  Samuel  Nelson,  of  New  York,  the 
venerable  Associate  Justice  of  the  Supreme  Court 
of  the  United  States;  Ebenezer  Rockwood  Hoar,  of 
Massachusetts,  who  had  been  Attorney-General  of 
the  United  States;  and  George  Henry  Williams,  late 
Senator  from  Oregon,  and  soon  to  be  appointed  to 
the  office  of  Attorney-General  of  the  United  States. 
John  Chandler  Bancroft  Davis,  then  Assistant 
Secretary  of  State,  was  made  Secretary  of  the  Com- 
mission, on  the  part  of  the  United  States. 

The  British  Commission,  with  the  exception  of 
Sir  Stafford  Northcote,  reached  New  York  22  Feb- 
ruary, 1871,  on  Washington's  birthday.  Upon  ar- 
rival at  Washington  these  distinguished  servants  of 
Her  Majesty  were  most  hospitably  received.1  Their 
stay,  as  might  have  been  expected,  was  the  most 
marked  social  feature  of  the  season.  Dinners  and 
excursions  were  arranged  after  a  fashion  that  gave 
ample  opportunity  for  the  visitors  to  meet  and 
make  the  acquaintance  of  prominent  Americans. 
The  Commission  effected  its  organization  on  the 
27th  of  February.  It  held  sessions  in  rooms  of  the 

1  Sir  Stafford,  accompanied  by  his  two  sons,  reached  New  York 
on  the  1st  of  March.  The  British  Commissioners  occupied  a  house 
on  K  Street,  upon  the  north  side  of  Franklin  Square,  known  as  the 
Philp  residence. 


64  THE  GENEVA  TRIBUNAL 

Department  of  State,  at  that  time  occupying  a  plain 
brick  building,  at  the  corner  of  Fourteenth  and  S 
Streets,  Northwest. 

An  account  from  the  British  point  of  view  of  the 
doings  of  this  distinguished  body  is  afforded  in 
the  "Life,  Letters,  and  Diaries  of  Sir  Stafford 
Northcote,  First  Earl  of  Iddesleigh,"  by  Andrew 
Lang.1 

Sir  Stafford's  complaints  of  the  Home  Govern- 
ment are  frequent,  and  sometimes  they  border  upon 
severity.  His  editor  tells  us  that  "  the  English  Com- 
missioners had  to  hold  their  own  not  merely  with  the 
Americans,  but  with  the  Home  Government,  and 
the  representative  of  Canada. "  Mr.  Lang  further 
says:  "On  Good  Friday  he  was  suffering  from  low 
spirits  and  telegrams  from  the  Home  Government."3 
One  would  suppose  that  Mr.  Gladstone  had  little  or 
no  responsibility  or  authority  in  the  premises.  In  a 
tone  of  despair,  Sir  Stafford  exclaims:  — 

"If  the  other  two  cables  get  repaired  before  we  go, 

1  Vol.  il,  p.  12.  Edinburgh  and  London,  1890.  Printed  extracts 
from  Sir  Stafford  Northcote's  Diary  convey  the  impression  that  he 
was  not  on  the  best  of  terms  with  the  Home  Government.  It  is 
known  that  he  felt  that  he  had  not  been  well  treated  by  them. 
He  tells  us  that  "  Dinner  parties,  dances,  receptions,  and  a  queer 
kind  of  fox  hunt,  with  picnics  and  expeditions  in  the  beautiful 
Virginia  country,  alternated  with  serious  business  and  grave  dis- 
cussion. The  Commissioners  of  either  nation  sat  on  opposite  sides 
of  a  long  table,  and  had  each  their  private  room,  where  they  with- 
drew, on  occasion,  to  deliberate  among  themselves." 

3  Ibid.,  p.  15. 


THE  TREATY  OF  WASHINGTON      65 

Heaven  help  us!  We  shall  not  be  able  to  respond  to  the 
American  Commission's  question  'How  do  you  do?'  with- 
out telegraphing  home  for  instructions,  and  being  in- 
formed that  Her  Majesty's  Government  prefer  our  say- 
ing ' Pretty  well'  to  our  saying  'Not  at  all  well.'"  l 

It  is  plain  to  see,  however,  that  Sir  Stafford  en- 
joyed these  meetings  as  heartily  as  any  one  of  the 
Commissioners.  He  contributed  in  a  generous  meas- 
ure to  the  excellent  feeling  that  prevailed  through- 
out. Bancroft  Davis,  who  attended  every  session, 
quotes  Sir  Stafford  as  saying:  "We  are  on  the  best  of 
terms  with  our  colleagues,  who  are  on  their  mettle, 
and  evidently  anxious  to  do  their  work  in  a  gentle- 
manly way,  and  go  straight  to  the  point."  Mr. 
Davis  adds:  "I  feel  sure  that  every  American  mem- 
ber would  have  heartily  responded  to  these  kindly 
words,  and  applied  them  to  his  British  colleagues."  2 

Mr.  Fish,  upon  motion  of  the  British  Commis- 
sioners, was  chosen  presiding  officer.  Throughout 
he  proved  to  be  the  guiding  spirit  upon  the  Ameri- 
can side.  The  work  proceeded  slowly,  for  there 
were  other  subjects  to  deal  with  besides  the  en- 
grossing one  of  the  "Alabama  Claims."  At  last, 

1  The  following  extract  is  from  Mr.  Lang's  text:  "The  Home 
Government  kept  putting  in  their  oar,  and  once  —  for  which  much 
may  by  literary  persons  be  forgiven  them  —  they  telegraphed  that 
in  the  Treaty  they  would  not  endure  adverbs  between  'to,'  the 
sign  of  the  infinitive,  and  the  verb.  The  purity  of  the  English  lan- 
guage they  nobly  and  courageously  defended."  Andrew  Lang:  Life, 
Letters  and  Diaries  of  Sir  Stafford  Northcote,  p.  13. 

2  Mr.  Fish  and  the  Alabama  Claims,  p.  73. 


66  THE  GENEVA  TRIBUNAL 

however,  by  the  3d  of  May,  the  parties  had  settled 
upon  the  language  of  the  Treaty.1 
We  quote  from  Sir  Stafford's  Diary  of  May  6 : — 

"  Held  our  last  conference  to-day.  Confirmed  the  pro- 
tocol, and  then  made  flattering  speeches  one  to  another. 
Read  over  the  Treaty  and  saw  the  ribbons  put  in,  ready 
for  sealing  on  Monday;  five  ribbons  drawn  through  each 
copy  (red  and  blue)  so  that  one  Englishman  and  one 
American  Commissioner  may  seal  upon  each  ribbon. 
Something  like  the  mode  of  assigning  partners  in  the 
cotillion.  We  all  carried  off  some  of  the  ribbon  as  a  me- 
morial. Gave  Mr.  Fish  a  copy  of  my  Ode  to  the  Fourth 
Article.  Signed  a  number  of  copies  of  our  photographs, 
the  Americans  signing  theirs  at  the  same  time.  A  framed 
copy  of  each  is  to  be  presented  to  us."  2 

On  the  forenoon  of  Monday,  8  May,  1871,  the 
signatures  of  the  High  Contracting  Parties  were 
affixed  hi  a  room  into  which  the  ladies  had  sent  a 
quantity  of  flowers. '  The  Commissioners,  after 
signing,  shook  hands  all  around,  and  then  turned  to 
strawberries  and  ice-cream — emolliunt  mores.  Thus 
concluded,  amid  the  best  of  feeling,  one  of  the  most 
significant  ceremonies  that  have  been  witnessed  in 
the  United  States  since  the  formation  of  the  Gov- 
ernment. It  was  the  triumph  of  a  kindly  senti- 

1  As  their  labors  were  reaching  a  conclusion,  a  day  or  two  before 
signing  the  Treaty,  Sir  Stafford  appears  to  have  been  in  a  particu- 
larly good  humor:  "Latterly,  I  think  we  have  had  the  whip  hand  of 
them,  and  De  Grey  has  managed  Fish  most  skilfully."  Letter  to 
Granville  (May  5,  1871),  Life  of  Lord  Granvilk,  vol.  il,  p.  89. 

1  Andrew  Lang:  Sir  Stafford  Northcote,  p.  17. 


THE  TREATY  OF  WASHINGTON      67 

ment,  and  of  an  honest,  straightforward  desire  to  do 
that  which  was  right  and  fair.  It  was  Anglo-Saxon 
nature  at  its  best. 

The  first  Article  of  the  Treaty  contained  an  ex- 
pression "in  a  friendly  spirit"  of  " regret  felt  by  Her 
Majesty's  Government  for  the  escape,  under  what- 
ever circumstances,  of  the  Alabama  and  other  ves- 
sels from  British  ports,  and  for  the  depredations 
committed  by  those  vessels."  We  may  well  believe 
that  it  cost  the  Englishmen  something  to  utter  these 
words.  Their  action  went  a  long  way  toward  allay- 
ing bitterness  of  feeling.  A  manly  thing  it  was  tojlo; 
and  the  record  stands  for  all  time  to  the  credit  fof 
a  manly  race.1  The  Treaty  contained  forty- three 
articles,  besides  the  preamble.  The  first  eleven 
treated  of  the  claims  generically  known  as  "The 
Alabama  Claims."  They  provided  that  all  the  claims 
growing  out  of  acts  committed  by  the  vessels,  and 
generically  known  as  "The  Alabama  Claims,"  should 
be  referred  to  a  Tribunal  of  Arbitration,  to  be  com- 
posed of  five  Arbitrators.  They  were  to  meet  at 
Geneva,  Switzerland,  and  to  examine  and  decide  all 
questions  laid  before  them  on  the  part  of  the  re- 
spective Governments. 

1  Protocol  xxxvl  of  the  Conference  of  the  High  Commissioners 
contains  a  statement  giving  an  account  of  the  negotiations  from 
which  the  following  is  an  extract:  "The  American  Commissioners 
accepted  this  expression  of  regret  as  very  satisfactory  to  them  and 
as  a  token  of  kindness,  and  said  that  they  felt  sure  it  would  be  so 
received  by  the  Government  and  people  of  the  United  States."  The 
protocol  is  printed  in  full  in  Mr.  Fish  and  the  Alabama  Claims,  p.  148. 


68  THE  GENEVA  TRIBUNAL 

It  was  further  agreed  that  three  rules,  as  to  the 
duties  of  a  neutral  Government,  in  respect  to  ves- 
sels intended  to  carry  on  war  against  a  power  with 
which  it  is  at  peace,  should  be  taken  as  applicable  to 
the  case,  which  rules  were  formulated  in  terms  of 
Article  VI  of  the  Treaty.1  Great  Britain  did  not 
assent  to  these  rules  as  a  statement  of  principles  of 
international  law,  which  were  in  force  at  the  time 
when  the  claims  arose,  but  Her  Majesty 's  Govern- 
ment, in  order  to  evince  its  desire  of  strengthening 
the  friendly  relations  between  the  two  countries, 
and  of  making  satisfactory  provision  for  the  future, 
agreed  that  hi  deciding  the  questions  between  the 
two  countries  arising  out  of  those  claims,  the  Arbi- 

1  The  three  rules  are  as  follows:  — 

A  neutral  government  is  bound:  — 

First,  to  use  due  diligence  to  prevent  the  fitting  out,  arming,  or 
equipping,  within  its  jurisdiction,  of  any  vessel  which  it  has  reason- 
able ground  to  believe  is  intended  to  cruise  or  to  carry  on  war  against 
a  power  with  which  it  is  at  peace;  and  also  to  use  like  diligence  to 
prevent  the  departure  from  its  jurisdiction  of  any  vessel  intended 
to  cruise  or  carry  on  war  as  above,  such  vessel  having  been  specially 
adapted,  in  whole  or  in  part,  within  such  jurisdiction,  to  warlike 
use. 

Secondly,  not  to  permit  or  suffer  either  belligerent  to  make  use  of 
its  ports  or  waters  as  the  base  of  naval  operations  against  the  other, 
or  for  the  purpose  of  the  renewal  or  augmentation  of  military  sup- 
plies or  arms,  or  the  recruitment  of  men. 

Thirdly,  to  exercise  due  diligence  in  its  own  ports  and  waters,  and 
as  to  all  persons  within  its  jurisdiction,  to  prevent  any  violation  of 
the  foregoing  obligations  and  duties. 

The  purport  of  these  rules,  it  may  be  added,  was  subsequently 
embodied  in  an  amendment  (33  and  34  Viet.  c.  90)  to  the  Foreign 
Enlistment  Act. 


THE  TREATY  OF  WASHINGTON      69 

trators  should  assume  that  Her  Majesty's  Govern- 
ment had  undertaken  to  act  upon  the  principles  set 
forth  in  these  rules. 

This  agreement,  as  may  readily  be  imagined,  had 
a  most  important  bearing  upon  the  questions  at 
issue.  When  the  contracting  parties  at  last  found 
themselves  in  harmony  as  to  the  terms  of  the  rules, 
the  critical  point  of  negotiation  had  been  passed  in 
safety.  Another  stipulation,  hardly  less  weighty, 
was  that  the  two  countries  agreed  to  observe  these 
rules  as  between  themselves  in  the  future.  Not  only 
this;  they  united  in  a  promise  to  bring  the  rules  to 
the  knowledge  of  other  maritime  powers,  and  invite 
those  powers  to  accede  to  them.  As  to  the  remaining 
subjects  of  the  Treaty,  it  is  enough  to  remark  that 
they  were  satisfactorily  disposed  of,  with  compara- 
tive ease. 

No  difficulty  arose  in  securing  the  ratification  of 
the  Treaty  in  the  Senate.  The  country  was  only  too 
glad  that  an  honorable  basis  of  settlement  had  been 
reached.  It  may  be  said  of  England,  that  while  the 
terms  of  the  Treaty  did  not  escape  criticism,  the 
news  that  the  Alabama  Claims  were  speedily  to  be 
settled  brought  into  every  quarter  of  the  kingdom 
a  sense  of  relief. 

The  same  good  fortune  that  thus  far  had  at- 
tended the  conduct  of  the  negotiation  smiled  upon 
the  selection  that  the  several  Governments  made 
of  the  men  who  were  to  carry  the  provisions  of  the 
Treaty  into  effect. 


70  THE  GENEVA  TRIBUNAL 

President  Grant,  acting  in  harmony  with  what  it 
is  not  too  much  to  describe  as  the  universal  senti- 
ment of  the  country,  appointed  Charles  Francis 
Adams  to  be  Arbitrator  on  the  part  of  the  United 
States.  Her  Majesty's  Government  conferred  a  like 
honor  upon  Sir  Alexander  Cockburn,  Lord  Chief 
Justice  of  England,  naming  him  as  Arbitrator  on  the 
part  of  Great  Britain.  The  King  of  Italy  named 
Count  Frederic  Sclopis,  of  Turin,  a  Senator  of  Italy, 
and  a  distinguished  judge  and  lawyer.  The  Presi- 
dent of  the  Swiss  Republic  chose  Jacques  Staempfli, 
of  Berne,  prominent  in  business  and  politics,  as 
the  fourth  Arbitrator;  while  the  Emperor  of  Brazil 
selected  for  this  eminent  position  the  Baron 
d'ltajuba,  at  that  time  his  Minister  Plenipotentiary 
at  Paris. 

The  second  Article  of  the  Treaty  provided  that 
each  party  should  name  one  person  to  attend  the 
Tribunal,  as  its  Agent,  to  represent  it  generally  in 
all  matters  connected  with  the  Arbitration. 

To  this  extremely  responsible  post  the  President 
called  John  Chandler  Bancroft  Davis  (1822-1907), 
who,  as  has  been  seen,  had  already  become  identified 
with  the  Treaty  by  serving  as  Secretary  of  the  Joint 
High  Commission.  Before  entering  upon  his  new 
duty  the  appointee  resigned  the  office  of  Assistant 
Secretary  of  State. 

Events  at  once  proved  that  a  wiser  choice  could 
not  have  been  made.  Bancroft  Davis  (for  so  he  was 
usually  called),  then  in  the  prime  of  life,  was  suited 


THE  TREATY  OF  WASHINGTON      71 

alike  from  natural  gifts  and  from  special  training  fox* 
such  a  mission.  He  was  born  in  1822,  at  Worcester, 
Massachusetts,  the  son  of  "  Honest  John  Davis," 
Governor  and  United  States  Senator.  Graduated 
from  Harvard  College,  in  the  Class  of  1840,  Mr. 
Davis  studied  law,  and  for  a  brief  season  practised 
his  profession  in  New  York  City.  He  served  as 
Secretary  of  Legation  in  London  at  the  time  (1849- 
1850)  when  Abbott  Lawrence  was  our  Minister  at 
St.  James's.  Later,  while  living  in  New  York,  he  be- 
came correspondent  in  this  country  of  the  London 
Times.  From  these  and  from  other  sources  Mr. 
Davis  had  gained  a  wide  acquaintance  with  political 
affairs,  domestic  and  foreign.  He  had  habituated 
himself  to  discern  seasonably  their  shifting  scenes, 
and  to  estimate  men  and  measures  at  a  proper  value. 
This  combination  of  a  thorough  knowledge  of  legal 
principles  and  a  familiarity  with  the  current  poli- 
tics of  the  United  States  and  of  foreign  countries 
closely  related  to  us,  seemed  to  mark  Mr.  Davis  as 
the  one  man  above  all  others  to  whom  could  be  en- 
trusted this  grave  duty.1  Secretary  Fish,  long  his 
personal  friend,  reposed  an  unbounded  confidence  in 
the  judgment  and  discretion  of  the  younger  man 
who  had  served  so  acceptably  as  Assistant  Secretary 
of  State. 

1  "  The  Administration  had  appointed  the  Honorable  J.  C.  Ban- 
croft Davis,  the  most  accomplished  diplomatist  of  the  country,  as 
the  Agent  of  the  United  States."  George  S.  Boutwell:  Sixty  Years 
in  Public  Affairs,  vol.  ii,  p.  200. 


72  THE  GENEVA  TRIBUNAL 

England  was  not  less  happy  in  her  choice  of  an 
Agent.  The  appointment  went  to  the  [Under-Secre- 
tary  of  State,  —  a  man  of  ability  and  solid  attain- 
ments, Charles  Aubrey  Stuart,  C.B.,  Lord  Tenter- 
den.  The  name  of  his  grandfather  (Abbott),  the  first 
Lord  Tenterden,  Chief  Justice  of  England,  is  familiar 
to  the  student  of  common  law.  The  grandson  had 
shown  himself  to  be  well  versed  in  the  law  of  na- 
tions, and  in  the  practice  and  traditions  of  diplo- 
macy. Of  simple  and  unassuming  manners,  Lord 
Tenterden  evinced  remarkable  skill  and  an  exem- 
plary fidelity  in  his  efforts  to  serve  Her  Majesty's 
interests,  and  to  carry  out  in  good  faith  the  Treaty. 
Later  in  these  pages  it  will  be  seen  how  fortunate  it 
was  for  the  cause  of  arbitration  that  these  two  men, 
on  whom  in  a  critical  moment  rested  the  duty  of 
standing  each  for  a  people  high-spirited  and  inclined 
to  firmness  that  would  go  to  the  verge  of  obstinacy, 
had  come  to  respect  and  to  trust  one  the  other. 
Friendly  relations  had  grown  up  between  them  while 
thrown  into  intimacy  daily  at  Washington  as  Secre- 
taries of  the  Joint  High  Commission. 

Mr.  Davis  remarks  of  Lord  Tenterden:  — 

"It  was  a  pleasure  to  me,  and,  without  exposing  my- 
self to  the  imputation  of  vanity,  I  may  say  I  believe  it 
was  a  pleasure  to  him,  to  find  the  relations  renewed  at 
Geneva.  Often  during  the  negotiations  at  Washington, 
and  still  more  often  during  the  trying  times  at  Geneva, 
we  were  obliged  to  trust  to  verbal  statements  of  agree- 
ments or  arrangements  made  between  us,  from  sheer 


THE  TREATY  OF  WASHINGTON      73 

inability  to  find  time  to  write  out  the  details.  Never,  so 
far  as  I  remember,  was  there  the  slightest  misunderstand- 
ing between  us  as  to  what  we  had  agreed  to."  l 

The  Treaty  had  expressly  provided  that  each 
party  should  name  one  person  to  attend  the  Tribunal 
as  Agent;  but  it  specified  nothing  with  respect  to  the 
appointment  of  Counsel.  That  it  contemplated  the 
actual  presence  of  Counsel  is  evident  from  the  lan- 
guage of  Article  V  —  giving  to  the  Arbitrators  the 
right,  if  they  desired  further  elucidation  with  regard 
to  any  point,  to  require  a  written  or  printed  state- 
ment, or  argument,  or  oral  argument  by  Counsel 
upon  it.2 

The  duty  devolved  upon  Secretary  Fish  to  select 
the  Counsel  from  among  the  great  lawyers  of  the 
United  States.  An  argument  would  have  to  be  pre- 
pared at  some  locality  in  Europe  remote  from  the 
books  and  papers  of  the  Department  of  State,  and 
in  circumstances  disadvantageous  in  other  particu- 
lars. Obviously,  a  single  individual  would  not  be 
equal  to  the  task,  however  learned  and  able.  Mr. 
Fish  appears  to  have  determined  to  choose  two  law- 
yers for  the  office.  He  fixed  upon  William  Morris 
Meredith  of  Philadelphia  and  Caleb  Cushing  of 
Washington,  both  eminent  in  their  profession,  and 
thoroughly  well  qualified  to  perform  the  duties  re- 
quired, and  addressed  them  a  letter,  4  September, 
187xf,  asking  them  to  act  conjointly. 

1  Mr.  Fish  and  the  Alabama  Claims,  p.  86. 
1  Gen.  Arb.,  vol.  1,  p.  14. 


74  THE  GENEVA  TRIBUNAL 

Mr.  Meredith  (1799-1873)  stood,  by  common 
consent,  at  the  head  of  the  Bar  of  Philadelphia.  He 
was  a  leader  "with  the  unmistakable  qualities  of 
true  greatness." 1  His  experience  at  the  bar  was  ex- 
tensive, his  intellectual  supremacy  undisputed.  Mr. 
Meredith  had  also  gained  experience  from  serv- 
ice in  the  Legislature  of  Pennsylvania.  President 
Taylor,  in  1849,  called  him  to  his  Cabinet  as  Secre- 
tary of  the  Treasury;  and  he  held  that  office  during 
Taylor's  administration,  and  for  a  little  while  under 
President  Fillmore,  —  somewhat  more  than  a  year 
in  all.  Subsequently  the  State  of  Pennsylvania  was 
so  fortunate  as  to  secure  his  services  as  Attorney- 
General,  at  a  critical  period  of  the  early  stages  of  the 
war  for  the  Union.  Because  of  his  weight  of  char- 
acter and  conspicuous  ability,  the  Governor  ap- 
pointed him  a  delegate  to  the  Peace  Congress  of 
1861.  In  a  word,  Mr.  Meredith  was  one  of  that  class 
of  men  who  serve  then1  fellows  because  public  senti- 
ment literally  calls  them  to  public  office. 

Mr.  Meredith,  on  the  5th  of  September,  1871, 
accepted  the  position  of  Counsel.  Bancroft  Davis 
visited  Philadelphia  once  or  twice  to  consult  with 
him.  It  appears  that  Mr.  Meredith  had  supposed 

1  Richard  L.  Ashhurst,  a  prominent  lawyer  of  Philadelphia,  In  a 
valuable  paper  in  memory  of  Mr.  Meredith,  marked  by  just  dis- 
crimination and  a  sound  conception  of  the  indispensable  qualities  of 
a  lawyer,  read  before  the  Pennsylvania  Bar  Association,  26  June, 
1901.  One  rises  from  a  perusal  of  this  sketch  with  an  admiration  not 
more  for  the  natural  gifts  and  solid  attainments  of  its  subject  than 
for  his  nobility  of  character  in  all  relations,  public  and  private,  •*- 


THE  TREATY  OF  WASHINGTON      75 

that  he  would  be  called  on  to  prepare  an  Argument 
which  either  might  not  require  his  presence  hi 
Europe,  or,  if  he  should  go  there,  would  detain  him 
for  only  a  brief  period.  His  health  was  none  of  the 
best.  After  bestowing  .some  thought  upon  the  law 
points  involved,  Mr.  Meredith  concluded  that  his 
infirmity  was  such  that  he  would  not  risk  a  voyage 
to  Europe.  He  accordingly  resigned  the  post,  17 
October,  1871. l 

Caleb  Gushing  (1800-1879)  enjoyed  a  reputation 
throughout  the  country  as  a  learned  lawyer  and  a 
statesman  of  remarkable  attainments  in  the  field  of 
public  law.  Perhaps  there  was  no  one  to  be  found  in 
the  United  States  better  equipped  for  the  work  to  be 
done  at  Geneva  than  this  veteran  jurist  and  diplo- 
matist. Nominally  a  citizen  of  Newburyport,  Mass- 
achusetts, he  had  for  years  lived  at  the  Capital, 
where  he  practised  before  the  Supreme  Court  of  the 
United  States,  and  before  mixed  commissions  for  the 
adjudication  of  claims.  Mr.  Cushing's  name  is  asso- 
ciated with  the  trial  of  many  important  cases.  He 
was  an  untiring  worker.  When  not  preparing  a  law 
brief,  he  would  apply  himself  to  acquiring  a  stock 

1  A  sense  of  regret  pervaded  the  profession  upon  learning  that  the 
country  would  not  have  the  benefit  of  Mr.  Meredith's  services. 
Says  Mr.  Ashhurst:  "It  would  have  been  almost  too  much  to  hope 
that  he  could  in  the  condition  of  his  health  have  been  able  to  make 
the  voyage  and  conduct  the  argument;  and  his  relinquishment  of  the 
journey  to  Geneva  was  undoubtedly  wise,  though  a  great  disap- 
pointment tb  Pennsylvania."  Ibid.,  p.  52.  See  post,  Appendix  n, 
for  further  remarks  upon  the  subject  of  Mr.  Meredith's  resignation. 


76  THE  GENEVA  TRIBUNAL 

of  information  on  some  out-of-the-way  subject,  or 
devote  his  time  to  reading  in  any  and  all  fields  of 
literature.  Ancient  and  modern  history  alike  he 
mastered;  he  could  read  and  speak  several  languages. 
With  a  marvellous  memory,  and  an  insatiable  desire 
to  add  to  his  supply  of  learning,  he  let  no  day  pass 
without  broadening  his  bounds  of  knowledge.  From 
all  that  he  thus  acquired  he  could  produce  this  or 
that  fact  for  use  at  a  moment's  notice.  Though  he 
read  with  rapidity,  he  retained  everything  worth 
retaining;  and  when  he  drew  it  forth  from  the  store- 
house of  his  memory,  the  statement  was  exact  and 
complete.  As  an  instance  of  wonderful  travel 
through  printed  pages,  it  may  be  mentioned  that 
when  appointed  to  the  bench  of  the  Supreme  Court 
of  Massachusetts,  Gushing  took  up  the  State  Re- 
ports, and  in  nineteen  days  he  had  read  them 
through  —  at  the  rate  of  three  volumes  a  day.1 

Mr.  Gushing  had  acquired  a  considerable  experi- 
ence from  service  hi  Congress,2  and  in  the  Legislature 

1  "  Mr.  Forney,  editor  of  the  Washington  Globe,  when  it  was  the 
administrative  organ,  told  me  that  when  an  article  was  needed  on 
our  foreign  relations,  he  would  call  on  Gushing,  who  would  write  one 
immediately,  without  a  moment's  preparation,  better  than  any- 
thing else  they  could  get  from  any  other  source.  One  day,  a  discus- 
sion took  place  in  the  Cabinet  upon  a  subject  connected  with  the 
politics  of  a  little  German  principality  of  which  all  the  members 
were  entirely  ignorant,  except  Gushing,  whose  unfailing  resources 
were  equal  to  the  emergency."  Eben  F.  Stone:  Address  before  the 
Essex  Bar  (1889),  p.  23. 

1  "With  an  amazing  celerity  he  mastered  In  turn  the  learning 
upon  each  subject  of  legislation  as  it  came  up.  Daniel  Webster  is 


THE  TREATY  OF  WASHINGTON      77 

of  his  State,  where  he  showed  himself  to  be  a  debater 
of  the  first  rank.  He  was  serving  as  an  Associate 
Justice  of  the  Supreme  Court  of  Massachusetts 
when  called  by  President  Pierce  to  become  Attorney- 
General.  His  opinions  while  holding  that  Cabinet 
office  attracted  attention  for  their  learning  and 
vigor.  They  covered  a  wide  range  of  topics.  Mr. 
Gushing  in  1841  was  sent  as  Commissioner  to  China. 
In  that  capacity  he  negotiated  an  important  treaty, 
—  the  first  treaty  ever  made  between  that  country 
and  the  United  States.  In  April,  1860,  Mr.  Gushing 
(who  was  a  Democrat  with  Southern  proclivities) 
presided  over  the  National  Democratic  Convention, 
at  Charleston,  South  Carolina.  He  went  with  the 
wing  of  the  party  that  seceded  and  afterwards  nom- 
inated Breckinridge,  at  Baltimore.  Allusion  has 
already  been  made  to  his  military  service  in  the 
Mexican  War.  Upon  the  outbreak  of  the  rebellion 
General  Gushing  tendered  his  services  as  an  officer  to 
Governor  Andrew  of  Massachusetts,  but  they  were 
not  accepted.  In  fine,  Caleb  Gushing  from  his  earli- 
est manhood  busied  himself  in  some  public  station 
or  other,  high  and  exacting,  where  he  invariably 
proved  himself  to  be  a  worker  of  ceaseless  activity, 
a  man  of  vast  learning,  and  of  a  prodigious  memory; 
a  lawyer  stimulated  by  a  restless  ambition  to  excel, 

reported  to  have  said  of  Gushing  that  he  had  not  been  six  weeks  in 
Congress  before  he  was  acknowledged  to  be  the  highest  authority  on 
what  had  been  the  legislation  of  Congress  on  any  given  subject.? 
Essex  Bar  Address. 


78  THE  GENEVA  TRIBUNAL 

and  to  display  to  the  utmost,  during  every  waking 
hour  of  the  day,  the  remarkable  talents  with  which 
Nature  had  endowed  him. 

His  rank  as  a  lawyer  was  high.1  A  very  learned 
man,  he  was  yet  not  a  great  lawyer,  in  the  sense  that 
Marshall  and  Curtis  and  Black  were  great  lawyers. 

Says  Stone:  — 

"Gushing  was  an  accomplished  lawyer,  thoroughly 
versed  in  the  science  of  jurisprudence,  and  specially 
familiar  with  federal  and  international  law,  but  as  a 
practitioner  he  was  not  specially  successful.  ...  He 
lacked  sense  of  proportion,  and  the  faculty  of  distin- 
guishing what  was  vital  and  essential  from  what  was 
cumulative  and  collateral.  He  argued  a  question  as  if  he 
thought  he  must  thoroughly  elaborate  and  exhaust  it  in 
all  its  relations,  and  sometimes  failed  to  present  and 
enforce  with  any  special  emphasis  the  vital  point  of  a 
case,  because  of  his  inability  to  see  the  whole  of  it  in  its 
proper  perspective.  He  was  deficient  in  what  artists  call 
the  feeling  for  values." 2 

It  was  an  open  secret  at  Washington  for  years 
that  Mr.  Gushing  used  to  be  called  on  from  time  to 
time  to  aid  the  Department  of  State  when  a  ques- 
tion of  unusual  difficulty  arose.  Upon  the  happening 
of  the  Trent  affair,  it  was  to  Mr.  Gushing  that  the 
merchants  of  New  York  turned  for  advice  as  to  the 

1  Just  after  I  had  come  to  the  bar  in  Boston,  one  day  the  news 
went  around  that  Caleb  Gushing  had  arrived  from  Washington  to 
argue  a  cause  in  the  Circuit  Court  of  the  United  States.   I  well  re- 
member that  the  young  lawyers  flocked  to  the  courtroom  to  hear  him. 

2  Essex  Bar  Address,  pp.  27,  31. 


THE  TREATY  OF  WASHINGTON      79 

law  of  nations  bearing  upon  the  action  of  Captain 
Wilkes.  Of  course  this  accomplished  lawyer  was 
perfectly  familiar  with  the  conduct  of  England  in 
respect  to  the  Confederate  cruisers;  and  Mr.  Davis 
consulted  him  freely  in  the  preparation  of  the  Case 
of  the  United  States. 

Though  it  is  to  anticipate  a  little,  let  me  add  here 
the  testimony  of  Bancroft  Davis  to  the  aid  that  Mr. 
Cushing  rendered  him  on  more  than  one  occasion  at 
Geneva,  since  the  successful  management  of  our 
cause  there  was  due  in  no  slight  degree  to  the  per- 
fectly harmonious  manner  in  which  these  two  thor- 
oughly trained  masters  in  the  diplomatic  field 
worked  together:  — 

"In  all  these  difficult  matters  I  have  uniformly  found 
in  General  Cushing  a  friendly,  prudent,  considerate,  and 
safe  adviser,  never  obtruding  advice  when  it  might  annoy 
or  perplex  me,  but  always  ready  to  assume  responsibility 
when  necessary;  and  animated  only  by  a  patriotic  desire 
to  maintain  the  honor  of  his  country.  I  do  not,  in  saying 
this,  mean  to  be  understood  as  discriminating  against  the 
other  gentlemen,  who  need  no  certificate  from  me.  I  have 
been  impelled  to  say  this  of  General  Cushing  because, 
as  the  Dean  of  the  Board  of  Counsel,  he  has  been  the 
medium  through  which  I  have  held  official  communica- 
tion with  them,  and  in  speaking,  speaks  for  them  as  well 
as  for  himself."  l 

$  After  the  declination  by  Mr.  Meredith,  two  law- 
yers, at  the  head  of  the  profession,  were  invited  to 

1  Davis  to  Fish,  24  June,  1872. 


80  THE  GENEVA  TRIBUNAL 

become  of  counsel  for  the  United  States,  Benjamin 
Robbins  Curtis  (1809-1874)  of  Boston,  and  William 
Maxwell  Evarts  (1818-1901)  of  New  York;  and  a 
letter  was  addressed  on  the  same  day,  25  October, 
1871,  to  each  of  them. 

The  former,  while  an  Associate  Justice  of  the  Su- 
preme Court  of  the  United  States,  had  secured  last- 
ing reputation  by  his  dissenting  opinion  in  the  fam- 
ous Dred  Scott  decision.  The  names  of  Curtis  and 
Evarts  are  popularly  associated  in  the  minds  of  the 
profession  and  the  public  for  the  masterly  defence 
put  forward  in  the  Senate  upon  the  impeachment 
trial  of  President  Andrew  Johnson.  The  speech  of 
Evarts  is  remembered  in  some  quarters,  particularly 
because  of  his  witty  description  of  Boutwell's  flight 
from  the  dome  of  the  Capitol  to  the  "hole  in  the 
sky."  Whoever  reads  the  concise,  logical  argument 
of  Curtis,  delivered  upon  that  memorable  occasion, 
will  surely  agree  with  what  a  distinguished  man 
there  present  remarked,  when  Curtis  resumed  his 
seat,  "There  is  nothing  more  left  to  be  said." 

Without  question,  Curtis  held  the  rank  of  the 
foremost  lawyer  in  America.  He  stood  far  in  advance 
of  those  who  approached  him,  in  the  consummate 
ease  with  which  he  could  state  a  case  in  plain  and 
direct  terms.  His  words  were  few  —  for  rarely  did 
he  address  the  court  for  more  than  half  an  hour.  He 
would  open  to  the  jury,  for  example,  a  patent  cause 
of  an  intricate  character,  in  brief  sentences,  so 
simply  and  so  clearly  stated  that  every  man  on  the 


THE  TREATY  OF  WASHINGTON      81 

panel  saw  through  it  all.  With  an  unerring  instinct 
this  wonderful  advocate  discerned  the  true  turning- 
point  of  every  controversy  in  which  he  was  of  coun- 
sel. The  unrivalled  acuteness  he  displayed  hi  seizing 
upon  that  which  was  vitally  important  was  excelled 
only  by  that  extraordinary  talent  which  enabled 
him  to  convey  to  the  mind  of  another  a  perfectly 
clear  view  of  everything  of  controlling  moment  that 
the  issue  involved. 

When  you  listened  to  an  argument  by  Mr.  Curtis 
you  thought  that  his  client's  case  was  one  of  the 
simplest  that  ever  a  court  had  to  deal  with;  you  saw 
plainly  just  what  it  was  that  ought  to  be  decided  — 
and  then  you  concluded  that,  for  this  time,  at  any 
rate,  Mr.  Curtis  had  been  retained  on  the  right  side. 
The  gift  was  his  to  a  degree  so  remarkable  that  Mr. 
Curtis  always  held  the  listener  to  the  closest  atten- 
tion; and  that  too  by  no  grace  or  trick  of  oratory, 
but  by  force  of  the  logical  sequence  of  his  quietly  de- 
livered argument  that  had  a  wonderful  intellectual 
fascination  about  it. 

Had  Curtis  gone  to  Geneva,  legal  literature  would 
have  been  enriched  by  a  model  of  forensic  reason- 
ing; his  chapters  of  the  Argument  would  have  been 
strong,  clear,  and  most  convincing.  But  circum- 
stances did  not  permit  him  to  accept  the  office.  The 
letter  of  Secretary  Fish  tendering  the  appointment 
reached  him  just  as  he  was  returning  from  a  trip 
abroad,  whither  he  had  gone  for  his  health,  after  a 
family  affliction.  Says  his  biographer:  — 


82  THE  GENEVA  TRIBUNAL 

"He  scarcely  felt  able  in  strength  and  spirits  to  the 
encounter  of  another  voyage  across  the  Atlantic,  imme- 
diately after  his  return  home,  without  some  urgent  call  of 
duty.  ...  If,  however,  news  of  the  appointment  had 
reached  him  before  he  left  Europe,  he  would  doubtless 
have  remained,  and  taken  part  in  the  proceedings  at 
Geneva."  ' 

Fortunately,  the  other  appointee  was  able  to 
accept  the  invitation  to  act  as  Associate  Counsel. 
Mr.  Evarts  was  an  ornament  of  the  great  Bar  of 
New  York  City.  Few  men  at  any  American  Bar 
have  ever  surpassed  this  distinguished  advocate  in 
the  skill  and  acumen  applied  in  the  trial  of  causes, 
whether  before  a  jury  or  a  full  bench.  He  was  fluent 
of  speech,  and  he  possessed  a  nimble  wit,  together 
with  the  faculty  of  holding  attention  until  his  ani- 
mated and  pleasing  periods  should  have  done  their 
work  of  persuasion.  Mr.  Evarts,  then  in  his  fifty- 
fourth  year,  had  won  many  important  causes,  and 
had  come  to  share  with  Charles  O'Conor  the  leader- 
ship of  the  New  York  Bar.  He  had  attained  some 
degree  of  prominence  in  politics,  chiefly  as  a  speech- 
maker.  In  the  Republican  Convention  of  1860,  he 
was  Chairman  of  the  New  York  delegation,  and  in 
that  capacity  had  proposed  the  name  of  William 
H.  Seward  as  a  candidate  for  the  Presidency.  The 
selection  of  Mr.  Evarts  for  Geneva  was  deemed  par- 
ticularly acceptable  to  the  merchants  of  New  York 

1  George  Ticknor  Curtis:  Memoir  of  Benjamin  Robbins  Curtis 
(1879),  vol.  I,  p.  443. 


THE  TREATY  OF  WASHINGTON      83 

and  Boston,  of  whom  not  a  few  were  personally 
interested  in  the  decision  to  be  pronounced  by  the 
Tribunal.  His  name  was  suggested  to  the  President 
by  Bancroft  Davis,  because  of  Mr.  Evarts's  rank  at 
the  Bar  of  the  great  mercantile  city  of  New  York. 

It  being  now  determined  that  the  Counsel  should 
be  three  hi  number,  it  was  thought  desirable  in  the 
choice  of  a  third  name  to  go  back  from  the  seaboard 
to  the  West.  On  18th  November  the  position  was 
tendered  by  the  Secretary  of  State  to  Morrison 
Remick  Waite  (1816-1888)  of  Toledo,  Ohio. 

Mr.  Waite  accepted  the  position,  the  more  in- 
clined to  go  to  Geneva  from  the  circumstance  that 
his  classmate,  Mr.  Evarts  (Yale,  1837),  was  of  the 
Counsel.  Mr.  Waite,  though  not  at  that  time  widely 
known  to  the  country,  stood  in  the  front  rank  of  the 
lawyers  of  his  State,  impressing  all  who  came  in  con- 
tact with  him  with  a  sense  of  his  absolute  fairness, 
as  well  as  his  ability  and  skill  in  the  trial  of  causes. 
He  came  of  good  New  England  stock,  his  father  hav- 
ing been  Chief  Justice  of  Connecticut.  The  reputa- 
tion of  Mr.  Waite  in  Ohio  was  that  of  an  upright, 
successful  lawyer,  of  singular  unselfishness  and  pur- 
ity of  character.  One  could  not  talk  five  minutes 
with  Mr.  Waite  and  fail  to  recognize  in  him  a  man 
of  good  sense  and  sound  judgment, — disposed  to 
be  tolerant,  charitable,  and  broad-minded.1  It  is 

1  It  is  understood  that  Columbus  Delano  of  Ohio,  Secretary  of 
the  Interior,  had  brought  to  the  notice  of  the  President  proof  of  the 
fitness  of  Mr.  Waite  for  this  position,  of  his  attainments  as  a  lawyer, 
and  of  his  sterling  qualities  as  a  man. 


84  THE  GENEVA  TRIBUNAL 

hardly  needful  to  remark  that  all  three  of  the  Coun- 
sel worked  together  in  perfect  harmony. 

The  Secretary  of  State,  on  8th  December,  ad- 
dressed to  each  of  the  Counsel  a  letter  embodying 
briefly  the  instructions  of  the  President  on  the  sub- 
ject of  his  duty.  A  significant  feature  of  this  letter 
is  the  reference  made  to  the  relation  that  the  Coun- 
sel were  to  bear  to  the  Agent  of  the  United  States. 
From  one  point  of  view,  the  Agent  could  be  con- 
sidered as  the  client:  — 

"The  presentation  and  the  management  of  the  legal 
argument  and  the  treatment  of  the  questions  of  law  and 
evidence  [says  the  Secretary]  are  committed  to  the  dis- 
cretion and  judgment  of  yourself  and  your  associate 
counsel.  The  President  thinks  that  in  this  branch  of 
your  duty  you  may  find  Mr.  Davis's  familiarity  with  the 
history  of  the  Case  of  advantage,  and  that  a  free  inter- 
change of  opinions  and  of  views  and  consultations  with 
him,  may  be  of  benefit."  1 

The  bringing  together  of  further  proofs  in  detail  of 
the  losses  sustained  by  owners  of  vessels  and  cargoes 
on  account  of  the  depredations  committed  by  the 
Confederate  cruisers  required  an  enormous  amount 
of  work.  In  order  to  deal  efficiently  with  this  volume 
of  business,  the  office  of  Solicitor  for  the  United 
States  had  been  created.  For  this  position,  Charles 
Cotesworth  Beaman,  Junior,  of  New  York  City 
(Harvard,  1861),  was  selected  in  December.  During 
the  previous  month  he  had  been  appointed  an  ex- 

*  Gen.  Arb.,  vol.  ii,  pp.  414-416. 


THE  TREATY  OF  WASHINGTON      85 

aminer  of  claims  in  the  Department  of  State.  Mr. 
Beaman  was  a  young  lawyer  of  unusual  promise. 
While  a  student  at  the  Harvard  Law  School  he  was 
regarded  as  one  of  the  brightest  men  in  attendance. 
He  took  a  prize  for  an  essay  upon  the  subject  of 
"The  Rights  and  Duties  of  Belligerent  War  Ves- 
sels." In  a  modified  form  this  paper  was  published 
in  the  North  American  Review  for  October,  1865. 
The  firm  grasp  and  the  vigor  with  which  the  writer 
handled  his  subject  attracted  the  attention  among 
others  of  Senator  Sumner,  who,  recognizing  Mr. 
Beaman's  talent  and  maturity  of  thought,  invited 
him  to  become  his  private  secretary  at  Washington. 
Accepting  the  invitation,  Mr.  Beaman  assumed  the 
duties  of  Clerk  of  the  Committee  on  Foreign  Rela- 
tions of  the  Senate.1 

In  March,  1871,  Mr.  Beaman  published  a  book 
entitled  "The  National  and  Private  Alabama 
Claims  and  their  Final  and  Amicable  Settlement." 
Although  from  necessity  somewhat  hastily  pre- 

1  My  classmate,  Beaman,  was  one  of  the  most  delightful  men  I 
have  ever  known.  Intellectually  strong,  he  had  a  kind  and  generous 
disposition;  and  he  was  endowed  with  a  never-ceasing  supply  of 
animal  spirits.  On  social  occasions,  whenever  present,  he  was  the 
"life  of  the  company."  His  capacity  for  friendship  was  truly  re- 
markable. Almost  at  first  sight,  every  one  confided  in  him.  The 
untimely  death  of  Mr.  Beaman,  in  New  York  City  in  1900,  was  a 
distinct  loss  to  the  community,  where  he  had  taken  rank  as  an  in- 
fluential citizen,  doing  valuable  work  for  the  public  interest,  as  well 
as  maintaining  a  foremost  place  among  the  leaders  of  the  bar.  Mr. 
Beaman  served  efficiently  as  an  overseer  of  Harvard  University, 
and  took  a  special  interest  in  the  development  of  the  Law  School. 


86  THE  GENEVA  TRIBUNAL 

pared,  this  volume  evinced  a  thorough  knowledge 
of  the  subject,  an  intelligent  conception  of  the  prin- 
ciples involved,  and  much  good  sense  in  suggesting 
how  to  solve  the  problem  presented.  I 

Edmund  Wetmore,  in  a  memorial  prepared  by 
him  for  the  Association  of  the  Bar  of  the  City  of 
New  York,  has  felicitously  said  of  Beaman: — 

"His  sound  judgment,  perfect  sincerity,  genial  temper, 
wide  knowledge,  and  unquestioned  integrity  inspired  a 
confidence,  not  only  in  his  clients,  but  in  those  opposed 
to  them,  that  often  gave  his  advice  as  counsel  all  the  in- 
fluence of  the  decision  of  a  judge.  .  .  . 

"  Mr.  Beaman  was  in  every  sense  of  the  word  a  good 
man.  Beyond  reproach  in  every  private  relation,  he  was 
benevolent  without  ostentation,  religious  without  cant, 
honest  and  sincere,  a  faithful  counsellor,  a  patriotic  citi- 
zen, a  constant  friend,  —  a  noble  man."  * 

After  the  Alabama  had  begun  her  course  of  de- 
struction, the  Department  of  State,  upon  receiving 
complaints,  treated  each  case  individually,  trans- 
mitting to  Mr.  Adams  at  London  a  statement  of  the 
claim,  together  with  the  proofs  to  be  laid  before 
the  English  Government,  with  a  request  for  redress. 
The  earliest  claims  were  those  growing  out  of  the 
burning  of  ten  whalers  at  the  Azores  in  September, 
1862.  The  language  of  Mr.  Adams  hi  his  letter  of 
20  November  following  was  that  his  Government 
asked  for  "redress  for  the  national  and  private  in- 
juries" sustained,  as  well  as  a  more  effective  preven- 

1  Report  for  1901,  pp.  98,  99. 


THE  TREATY  OF  WASHINGTON      87 

tion  of  any  repetition  of  such  lawless  and  injurious 
proceedings  in  Her  Majesty's  ports  hereafter.  Record 
evidence  of  claims  poured  into  the  Department  until 
the  documents,  by  the  end  of  the  war,  formed  a 
large  bulk  of  material.  As  soon  as  the  Treaty  of 
Washington  had  gone  into  effect,  the  Department  of 
State  issued  a  circular  letter,  requiring  persons  who 
desired  to  lodge  claims  to  be  laid  before  the  Tribunal 
at  Geneva  to  file  their  papers  with  the  Department 
seasonably,  advising  them  that  the  time  for  pre- 
senting the  Case  of  the  United  States  would  expire 
on  16th  December,  1871. 

The  work  which  Mr.  Beaman  superintended  was 
thoroughly  done.  It  consisted  of  furnishing  a 
printed  list  giving?  the  names,  dates,  figures,  etc., 
and  a  memorandum  of  the  papers  accompanying  the 
statement  of  the  loss.  This  list  nearly  fills  volume 
vn  of  the  Appendix  to  the  Case  of  the  United  States. 
In  April  following,  a  revised  list  of  claims  was  laid 
before  the  Tribunal.  Neither  the  original  documents 
nor  copies  were  taken  to  Geneva.  It  was  sufficient 
that  the  Government  went  upon  record  averring 
that  claims  of  this  description,  in  the  amounts 
stated,  had  been  filed  at  Washington. 

The  American  Arbitrator,  the  Agent,  and  each 
one  of  the  Counsel  was  provided  with  a  secretary. 
These  gentlemen  were:  Mr.  Brooks  Adams,  Secre- 
tary to  his  father,  Charles  Francis  Adams;  Mr.  John 
Davis,  Secretary  to  his  uncle,  J.  C.  Bancroft  Davis; 
Mr.  Frank  W.  Hackett,  Secretary  to  Caleb  Gush- 


88  THE  GENEVA  -TRIBUNAL 

ing;  Mr.  William  F.  Peddrick,  Secretary  to  William 
M.  Evarts;  and  Mr.  Edward  T.  Waite,  Secretary  to 
his  father,  Morrison  R.  Waite. 

Article  III  of  the  Treaty  provided  that  the  written 
or  printed  Case  of  each  of  the  two  parties,  accom- 
panied by  the  documents,  official  correspondence, 
and  other  evidence  on  which  each  relied,  should  be 
delivered  hi  duplicate  to  each  of  the  Arbitrators  and 
to  the  Agent  of  the  other  party  within  a  period  not 
exceeding  six  months  from  the  date  of  the  exchange 
of  the  ratifications  of  the  Treaty.  This  date  was 
17  June,  1871.  So  it  became  necessary  that  the 
American  Case,  with  its  accompanying  documentary 
proof,  should  be  presented  to  the  Tribunal  by  16th 
December,  1871. 

Bancroft  Davis  wrote  the  American  Case.  From 
the  beginning  to  the  end  of  this  document  he  is  the 
author.  Mr.  Davis  took  the  precaution  to  print 
the  first  chapters  in  memorandum  form.  These  he 
submitted  to  President  Woolsey  of  Yale,  William 
Beach  Lawrence  of  Rhode  Island,  Judge  E.  Rock- 
wood  Hoar,  and  to  Caleb  Cushing,  for  such  sugges- 
tions and  advice  as  they  might  see  fit  to  tender.  The 
last-named  gentleman  had,  upon  more  than  one 
occasion  (as  has  been  stated  heretofore),  conferred 
with  Mr.  Davis,  and  given  him  substantial  help  by 
way  of  suggestions.  The  Case,  it  may  be  added,  was 
prepared  under  the  watchful  eye  of  Secretary  Fish, 
who  approved  every  word  of  the  final  draft. 


THE  TREATY  OF  WASHINGTON      89 

Accompanying  the  Case  were  seven  volumes  of 
documentary  evidence  and  correspondence,  one  of 
them  being  devoted  to  a  presentation  of  private 
claims,  detailing  the  amount  of  losses  with  references 
to  proofs  of  the  same.1 

In  the  sense  of  an  instrument  adapted  perfectly 
to  the  work  it  is  designed  to  accomplish,  the  Ameri- 
can Case  may  be  pronounced  a  masterpiece.  The 
author  displays  a  grasp  of  the  subject  that  is  firm 
and  comprehensive.  His  style  is  clear,  his  reasoning 
forcible  and  logical.  The  Case  is  a  work  of  real 
literary  merit.  The  story  is  told  so  as  to  awaken  in- 
terest in  the  reader.  Taken  up  even  to-day  the  nar- 
rative will  be  found  entertaining  and  instructive.2 

1  The  Case  contained  a  map  of  the  southeast  coast  of  the  United 
States,  and  its  relation  to  the  British  West  India  colonies.   This 
map  showed  the  proximity  of  the  port  of  Nassau,  New  Providence, 
to  Charleston  and  Savannah,  it  being  desirable  that  the  neutral 
Arbitrators  should  understand  the  facility  with  which  blockade- 
running  was  conducted  from  this  British  island. 

2  Says  Mr.  Gushing:  "It  was  my  opinion  on  reading  the  Ameri- 
can Case  for  the  first  time,  and  it  is  my  opinion  now,  after  repeated 
readings,  that  it  is  not  only  a  document  of  signal  ability,  learning, 
and  forensic  force,  —  which  indeed  everybody  admits,  —  but  that 
it  is  also  temperate  in  language  and  dignified  in  spirit,  as  becomes 
any  state  paper  which  is  issued  in  the  name  of  the  United  States." 
The  Treaty  of  Washington,  p.  31. 

"The  Treaty  having  been  made,  the  next  step  was  the  framing  of 
the  American  Case.  This  very  important  work  Mr.  Fish  entrusted 
to  his  assistant,  Mr.  Davis,  who  performed  it,  under  the  general 
direction  of  Mr.  Fish,  in  the  best  possible  manner.  No  stronger 
statement  of  the  position  and  rights  of  the  United  States  could,  I 
think,  have  been  set  forth  by  any  one."  George  F.  Edmunds:  Ad- 


90  THE  GENEVA  TRIBUNAL 

With  a  commendable  foresight  Mr.  Davis  had 
caused  the  Case  and  a  large  part  of  the  accompany- 
ing documents  to  be  printed  both  in  English  and  in 
French,  a  precaution  which  was  not  adopted  by  the 
other  side.  Our  Agent  was  aware,  too,  how  vital 
was  it  that  Continental  Europe  should  possess 
exact  and  trustworthy  information  as  to  the  issue 
in  controversy.  He  had  the  Case  printed  in  Span- 
ish.1 He  also  printed  it  in  English  (as  well  as  in 
French)  at  the  Brockhaus  Press  of  Leipsic,  in 
octavo  form,  with  a  full  index.  Copies  of  the  Case 
thus  reproduced  were  distributed  judiciously  in 
several  countries. 

On  the  13th  of  December,  1871,  Mr.  Davis  left 
Paris  for  Geneva,  in  company  with  Mr.  Adams,  Sir 
Alexander  Cockburn,  and  Lord  Tenterden.  They 
were  enabled,  while  travelling,  to  arrange  the  pre- 
liminaries for  organizing  the  Tribunal.  On  the  15th, 
a  bitterly  cold  day,  after  calling  upon  the  other 
Arbitrators,  Mr.  Adams,  accompanied  by  Mr. 
Davis,  went  to  the  Hotel  De  Ville  in  Geneva,  to  pay 
their  respects  to  the  President  of  the  Swiss  Canton, 
and  to  the  Council  of  State.  Mr.  Adams,  in  fitting 
terms,  expressed  the  appreciation  of  the  United 
States  for  the  courtesy  Switzerland  had  shown  in 

dress  in  Memory  of  Hamilton  Fish  before  the  Legislature  of  the  State  of 
New  York  (1894),  p.  48. 

1  Steps  were  taken  to  have  the  Case  printed  in  Italian;  Mr.  John 
Davis  went  to  Rome  and  consulted  with  our  Minister,  Mr.  Marsh, 
to  that  end;  but  the  plan  was  found  to  be  impracticable  in  the  short 
time  at  disposal. 


THE  TREATY  OF  WASHINGTON      91 

tendering  the  Hotel  De  Ville  for  the  Conference. 
Upon  proceeding  to  organize  the  Tribunal,  Count 
Sclopis  was  chosen  to  preside;  and  M.  Alexandre 
Favrot,  of  Berne,  was  appointed  Secretary.  An  ex- 
change was  then  effected  of  the  British  and  Ameri- 
can Cases.1 

1  I  have  in  my  possession  a  pamphlet  of  fifteen  pages,  entitled 
An  Incident  of  the  Alabama  Claims  Arbitration.  It  is  a  paper  that 
was  read  by  its  author  in  1906  before  a  patriotic  society  in  the  State 
of  New  York.  The  author  tells  us  that  he  was  a  friend  of  Benjamin 
F.  Stevens  (1833-1904),  Despatch  Agent  of  the  United  States  at 
London.  While  spending  several  days  in  Mr.  Stevens's  company  at 
a  hotel  hi  Winchester,  England  (about  1887),  the  author,  it  seems, 
heard  a  story  from  that  gentleman,  who  said  it  should  not  go  into 
print  so  long  as  he  (Stevens)  lived.  The  story  is,  briefly,  as  follows:  — 

As  Agent,  Mr.  Stevens  had  received  a  copy  of  the  American 
Case;  and  he  was  looking  for  duplicate  copies  to  be  delivered  to  the 
British  Government.  The  last  steamer  had  arrived,  but  no  pack- 
age. The  copies  had  to  be  delivered  to  the  British  Agent  by  Mon- 
day, 18  December,  1871.  On  Saturday,  the  16th,  Stevens  drove  to 
General  Schenck's,  found  a  copy  there,  but  no  duplicates.  He 
drove  to  Downing  Street,  and  the  British  Secretary  for  Foreign 
Affairs  told  him  that  no  copy  had  been  received.  Stevens  asked 
him  what  would  be  the  result  if  the  Case  were  not  received  in  time. 
The  Secretary  replied:  "Failure  to  deliver  the  Case  is  an  abandon- 
ment of  the  provisions  of  the  Treaty  by  the  Government  that  fails 
of  compliance."  Stevens  called  a  cab,  went  to  Schenck's,  and  after 
the  General  had  declined  to  lend  his  copy  he  (Stevens)  "  quietly 
backed  to  the  table  upon  which  the  document  lay  and  passed  his 
hands  behind  him,  and  took  the  thin  book  (less  than  one  inch  in 
thickness),  and  slipped  it  into  the  skirt  pocket  of  his  coat,"  etc.,  etc. 

The  narrative  goes  on  to  say  that  Stevens  sent  back  to  their 
printing-office  a  group  of  typesetters,  who  were  just  starting  on 
their  Saturday  holiday,  he  promising  them  extra  pay,  getting  a 
lithographer  to  make  a  map,  and  so  on,  and  states  that  by  Monday 
morning  a  hundred  copies  of  the  book  were  ready.  Before  twelve 


92  THE  GENEVA  TRIBUNAL 

After  these  formal  proceedings  had  ended,  the 
members  of  the  Tribunal  dined  together,  at  the  in- 
vitation of  the  two  Agents  jointly,  and  thereupon 
all  parted  on  the  best  of  terms. 

Immediately  upon  his  return  to  Paris,  Mr.  Davis 
set  to  work  upon  the  preparation  of  the  Counter- 
o'clock  Stevens  had  delivered  two  copies  of  the  reprinted  Case 
to  Lord  Tenterden,  at  the  Foreign  Office.  This  act  "  saved  the  Ar- 
bitration at  Geneva  to  us." 

The  explanation  given  by  Mr.  Stevens  was,  "Instead  of  commit- 
ting so  important  a  matter  to  the  hands  of  a  special  messenger  to 
bring  it  across  the  Atlantic,  or  sending  the  number  of  necessary 
copies  at  the  time  that  a  single  copy  was  sent  to  General  Schenck, 
and  a  single  copy  was  sent  to  me,  the  bundle  was  entrusted  to  the 
custody  of  an  express  company,  and  as  it  was  thought,  in  time  for 
the  last  steamer,  but  the  express  messenger,  knowing  nothing  of  the 
importance  of  the  package,  treated  it  like  any  other,  and  it  reached 
New  York  after  the  steamer  had  sailed." 

Of  course  this  story,  so  far  as  serving  duplicate  copies  upon  the 
British  Agent  is  concerned,  is  simply  absurd.  Mr.  Davis  brought 
over  with  him  cases  containing  not  only  the  necessary  copies  of  the 
American  Case,  but  a  complete  set  of  the  seven  volumes  of  docu- 
ments —  duplicate  copies  for  each  of  the  Arbitrators  and  for  the 
British  Agent.  Mr.  Davis  on  the  4th  reports  his  arrival  at  Paris 
to  Mr.  Fish,  and  says:  "The  several  cases  entrusted  to  me  have 
arrived,  also."  The  British  Agent,  as  we  have  seen,  received  the 
American  Case  and  the  accompanying  seven  volumes  of  documents, 
on  Friday,  15  December,  at  Geneva  —  so  it  became  quite  superflu- 
ous for  Mr.  Stevens  to  drive  around  in  a  cab  on  the  18th,  and  other- 
wise exert  himself  "to  save  the  Treaty." 

My  excuse  for  taking  up  space  with  these  details  is,  that  it  seems 
hardly  safe  to  leave  this  remarkable  story  uncontradicted;  else 
some  one  may  at  a  future  day  actually  believe  that  our  Depart- 
ment of  State  did,  at  least  at  one  time,  conduct  its  despatch  busi- 
ness in  a  happy-go-lucky  manner.  Although  the  "incident"  is  not 
merely  untrue,  but  ridiculous,  one  cannot  be  sure  that,  In  spite  of 


THE  TREATY  OF  WASHINGTON      93 

Case.  As  we  shall  presently  see,  England  had  now 
adopted  the  policy  of  trying  her  case  in  the  news- 
papers. Public  opinion  adverse  to  the  United  States 
might  have  gained  considerable  headway  upon  the 
Continent,  had  not  our  Agent  kept  a  vigilant  eye 
upon  the  press  of  Great  Britain,  as  well  as  noted  day 
by  day  what  the  newspapers  of  the  principal  cities 
of  the  rest  of  Europe  were  saying  upon  the  topic  of 
the  "Alabama  Claims."  Mr.  Davis  took  care  that 
there  should  frequently  appear  in  Continental  jour- 
nals of  the  largest  influence  articles  setting  forth 
substantially  the  American  Case,  with  the  conten- 
tions of  the  United  States,  as  they  really  existed. 
This  undertaking,  upon  which  our  Agent  bestowed 
time  and  thought,  had  the  effect  of  bringing  about 
results  that  were  to  an  eminent  degree  satisfactory. 
Mr.  Fish  was  enabled  to  keep  in  touch  with  what 
was  going  on,  by  means  of  full  official  reports  sent 
by  mail  to  Washington  at  every  opportunity.  In 
addition  to  these  [reports,  which  were  as  complete 
as  practicable,  Mr.  Fish  received  regularly  a  "  con- 
fidential" letter,  that  supplied  him  with  each  day's 

its  absurdity,  tradition  may  not  by  and  by  countenance  the  tale  of 
how  the  energetic  Stevens,  once  upon  a  time,  "saved  the  Treaty." 
It  is  almost  superfluous  to  quote  from  Mr.  Bancroft  Davis,  as 
follows:  "It  fell  to  my  lot  to  prepare  the  document  styled  in  the 
Treaty  the  Case  of  the  United  States.  I  did  this  to  the  best  of  my 
ability,  and  sailed  for  Havre  in  November,  with  the  necessary 
quantity  of  copies  in  English  and  in  French  to  enable  me  to  com- 
ply with  the  provisions  of  the  Treaty."  Mr.  Fish  and  the  Alabama 
Claims,  p.  86. 


94  THE  GENEVA  TRIBUNAL 

record  of  what  was  being  accomplished,  with  a  free 
comment  thereon,  and  an  account  of  what  could  be 
gathered  —  and  it  was  by  no  means  of  small  volume 
-  of  the  talk  and  speculation  that  accompanied 
these  proceedings.  In  this  line  of  work  Mr.  Davis 
exhibited  a  peculiar  skill  and  tact.  Every  one  of  his 
" confidential"  letters  must  have  been  sent  off  in 
haste,  yet  all  are  accurate  in  expression,  and  written 
in  pure,  limpid  English.  Where  the  information  con- 
veyed partakes  of  the  character  of  rumor,  the  need- 
ful qualifications  as  to  probable  truth  are  carefully 
embodied  in  the  Agent's  report.  The  reader  feels 
that  a  firm  and  skilful  hand  is  guiding  the  pen.  The 
unusually  attractive  style  of  these  confidential  com- 
munications is  so  apparent  as  to  emphasize  their 
literary  value.  At  a  future  day  they  can  be  read  with 
pleasure  as  well  as  profit.  The  original  manuscript 
letters  are  bound  up  with  the  other  papers  —  all  of 
which  are  preserved  in  five  stout  volumes,  in  the 
Archives  of  the  Department  of  State. 


CHAPTER  IV 

OUR  WORK  AT  PARIS 

OUR  party,  as  has  already  been  related,  found  itself 
at  one  o'clock  on  the  morning  of  Thursday,  the 
8th  of  February  (1872),  installed  at  the  Hotel 
Westminster,  in  the  Rue_de  la  Paix,  We  were  all 
tired  enough  to  sleep  soundly.  By  half-past  eight, 
when  there  could  have  been  not  overmuch  daylight, 
Andrew  awoke  me,  bringing  hi  upon  a  tray  a  pot  of 
coffee  and  a  long  roll  of  bread.  In  a  subdued  tone  he 
imparted  to  me  the  information  that  he  had  dis- 
covered it  to  be  a  custom  of  the  country  to  let  a  man 
have  this  much,  in  order  to  sustain  life,  while  he 
waits  in  the  reasonable  assurance  that  later  on  he 
will  be  likely  to  get  a  real  breakfast.  Andrew  dis- 
creetly withheld  an  expression  of  opinion;  but  from 
his  manner  it  was  to  be  gathered  that  so  wide  a  de- 
parture from  the  good  old  Virginia  style  of  begin- 
ning the  day  failed  to  meet  with  his  entire  approval. 
Mr.  Gushing,  after  having  me  attend  to  a  few 
matters  of  business  in  his  rooms,  took  me  with  him 
to  another  part  of  the  hotel,  to  pay  our  respects  to 
Mr.  Bancroft  Davis,  the  Agent  of  the  United  States, 
and  to  Mrs.  Davis.  I  found  the  former  to  be  a  fine- 
looking,  dignified  gentleman,  of  apparently  about 
five-and-forty,  well-built  and  erect  of  form,  with  a 


96  THE  GENEVA  TRIBUNAL 

countenance  that  betokened  to  an  unusual  degree 
strength  of  character.  His  manners  indicated  the 
refined  taste  of  a  scholar,  while  there  were  not  lack- 
ing those  signs  of  force  and  energy  that  mark  the 
successful  man  of  affairs.  He  greeted  us  cordially, 
and  I  instantly  felt  at  home.  The  sight  of  him,  I 
may  add,  inspired  a  renewed  confidence  in  the  suc- 
cess of  our  cause. 

Of  Mrs.  Davis,  let  me  confess  that  I  never  shall 
forget  how  graciously  she  received  her  callers  of  that 
morning.  I  became  at  once  aware  that  the  wife  with 
heart  and  soul  was  helping  her  husband  in  the  mis- 
sion for  which  he  had  come  abroad.  Her  agreeable 
converse  was  marked  by  animation,  by  a  sympa- 
thetic tone  of  voice,  and  that  nameless  charm  which 
attends  high  breeding.  No  wonder  that  Lord  Sel- 
borne  (Roundell  Palmer),  in! ^recording  his  impres- 
sions of  Geneva,  was  moved  to  say  of  Mrs.  Bancroft 
Davis  that  she  "was  a  general  favorite."  * 

At  a  later  period,  upon  considering  how  fully  this 
charming  woman  had  apprehended  the  nature  of 
the  task  committed  to  her  husband,  with  what  meas- 
ure of  diligence  she  had  aided  him,  both  from  her 
familiarity  with  our  politics  and  those  of  England 
(not  to  speak  of  the  traditions  of  diplomacy),  and 
from  her  knowledge  of  French  and  other  languages; 
considering,  too,  how  unerring  was  her  insight  into 
character,  with  what  constancy  she  had  encouraged 
Mr.  Davis,  amid  perplexities  at  times  threatening 

1  Memorials  Personal  and  Political,  1865-1895,  vol.  i,  p.  247. 


OUR  WORK  AT  PARIS  97 

disaster,  and  how  surely  her  quiet  influence  had 
confirmed  each  of  us  Americans  in  the  conviction 
that,  throughout  the  controversy  with  Great  Brit- 
ain, our  country  was  absolutely  right,  I  was  not 
slow  to  reach  the  conclusion  that  no  small  share  of 
the  honors  won  at  Geneva  justly  belong  to  Mrs. 
Bancroft  Davis. 

A  stranger  to  the  etiquette  of  the  diplomatic  serv- 
ice, I  attached  an  undue  importance  to  the  circum- 
stance that  the  American  Minister,  immediately 
upon  our  arrival,  had  left  his  card  for  me  at  the 
Hotel  Westminster.  At  any  rate,  I  was  greatly 
pleased.  Gratification  on  my  part  had  a  more  sub- 
stantial basis,  however,  when  I  came  to  discover, 
as  I  soon  did,  what  an  attractive  and  excellent  man 
Mr.  Washburne  was.  All  thought  of  courtesy  merely 
official  was  quickly  merged  in  a  most  enjoyable 
personal  intercourse.  In  company  with  his  son 
Gratiot,  Mr.  Washburne  called  early  in  the  forenoon 
of  our  first  day  upon  Mr.  Gushing  and  Mr.  Beaman; 
nor  did  he  forget  to  extend  a  hearty  welcome  to  each 
of  the  secretaries. 

Seldom  had  I  met  with  a  man  who  from  the  start 
so  unreservedly  gained  my  respect  and  liking  as  our 
Minister  to  France.  A  robust  American,  he  showed 
himself  to  be  a  person  of  abounding  common  sense, 
and  a  big  heart.  Nothing  could  exceed  the  frankness 
and  good-nature  of  his  bearing.  Thoroughly  demo- 
cratic in  taste  and  feeling,  Mr.  Washburne  treated 
every  one  kindly  —  in  that  " breezy"  way,  so  to 


98  THE  GENEVA  TRIBUNAL 

speak,  that  we  are  accustomed  to  term  "  Western." 
Upon  more  than  one  occasion  he  asked  me  to  dine 
en  famille  at  his  hotel,  in  Avenue  de  1'Imperatrice. 
At  these  times,  prompted  by  my  questions,  he 
would  talk  freely  of  American  politics,  and  particu- 
larly of  men  with  whom  he  had  served  in  Congress. 
Mr.  Washburne's  long  experience  as  a  member  from 
Illinois  and  his  intimacy  with  leaders  in  either  party 
rendered  these  talks  of  lively  interest.  I  particu- 
larly recall  what  he  had  to  say  of  the  nomination 
of  Horace  Greeley  for  the  Presidency  by  a  political 
organization  which  for  a  lifetime  the  Tribune  editor 
had  vigorously  denounced  —  the  Democratic  Party. 
A  special  treat  it  was  to  listen  to  Mr.  Washburne 
when  he  spoke  of  the  siege  of  Paris,  of  the  scenes  of 
which  he  had  been  a  daily  witness,  and  when  he  told 
of  the  appalling  events  that  followed  the  surrender. 
The  name  of  this  eminent  man  is  forever  associated 
with  that  remarkable  chapter  in  the  history  of 
France.  It  will  be  recalled  that,  upon  the  outbreak 
of  hostilities,  the  archives  of  the  German  Embassy 
had  been  turned  over  to  the  American  Legation.  At 
Bismarck's  request,  and  by  permission  of  the  French 
Government,  our  Minister  furnished  protection  to 
Germans  who  could  not  leave  the  city.  The  under- 
taking threw  upon  Mr.  Washburne  and  his  secre- 
taries an  enormous  amount  of  labor.  Most  of  the 
Germans  to  be  cared  for  were  laboring  men  and  wo- 
men. In  great  throngs  they  filled  the  Legation  and 
the  surrounding  streets,  all  eager  to  secure  passes,  or 


OUR  WORK  AT  PARIS  99 

to  receive  aid  in  some  form  that  would  enable  them 
to  leave  France. 

Minister  Washburne,  however,  proved  himself 
equal  to  the  task.  The  efficient  and  kindly  way  in 
which  he  performed  his  daily  labors  won  for  him  a 
world- wide  reputation.  It  was  the  combination  of 
good  judgment  and  broad  humanity  that  enabled 
him  to  go  through  with  this  work  in  a  manner  to 
gratify  both  nations.  But  if  Mr.  Washburne  dis- 
played an  extraordinary  capacity,  while  the  French 
capital  was  under  siege,  in  dealing  with  troubles  of 
this  nature,  all  the  more  did  his  wisdom  and  courage 
come  to  the  front  upon  the  capture  of  the  city,  and 
the  committing  of  fearful  excesses  by  the  Commune. 
The  service  afforded  to  the  unfortunate  Darboy, 
Archbishop  of  Paris,  by  the  representative  of  the 
United  States,  forms  a  part  of  the  pathetic  story  of 
that  martyrdom,  to  be  held  in  lasting  remembrance. 
Rarely  has  it  fallen  to  the  lot  of  an  American  diplo- 
mat (if  indeed  it  has  ever  before  occurred)  to  reap 
a  harvest  of  well-doing  such  as  was  vouchsafed  to 
Mr.  Washburne. 

The  comfort  of  our  American  party,  while  en- 
gaged for  months  at  work  in  Paris,  preparing  for 
Geneva,  was  studied  by  Mr.  Washburne;  and  every 
one  of  us  was  indebted  to  him  for  personal  atten- 
tions unsparingly  rendered.  We  were,  one  and  all, 
grateful  to  him,  and  to  the  secretaries  of  the  Lega- 
tion, for  what  they  did  so  constantly  and  so  gra- 
ciously hi  our  behalf. 


100  THE  GENEVA  TRIBUNAL 

It  is  worthy  of  special  mention  that  Mr.  Wash- 
burne  took  frequent  opportunity  to  enjoy  the  soci- 
ety of  Mr.  Gushing,  of  whom  he  has  said:  "I  have 
never  known  a  public  man  in  the  United  States  of 
such  wonderful  and  varied  accomplishments." l  In 
return,  Mr.  Gushing,  in  ample  form,  evinced  his  ap- 
preciation of  these  attentions.  Just  as  he  was  leav- 
ing Havre,  to  sail  for  home,  he  wrote  to  Mr.  Wash- 
burne  a  graceful  letter,  under  date  of  4  October, 
1872,  in  which,  not  by  way  of  compliment,  but  with 
genuine  feeling,  he  says:  — 

"The  many  opportunities  I  have  had,  during  the  last 
nine  months,  of  intercourse  with  official  and  other  persons 
of  Europe,  of  different  nationalities,  have  enabled  me  to 
appreciate  thoroughly  the  preeminent  ability  and  signal 
distinction  which  you  have  manifested  in  the  difficult 
post  of  Minister  of  the  United  States."  2 

Mr.  Washburne  feelingly  observed  that  he  con- 
sidered this  one  of  the  highest  compliments  he  had 
ever  received. 

Many  prominent  members  of  the  American  col- 
ony resident  at  Paris  interested  themselves  to  make 
our  stay  agreeable.  Among  the  number  it  may  be 
mentioned  that  Mr.  Eliot  Cowden,  and  the  bankers, 
Mr.  Munroe  and  Mr.  Andrews,  were  particularly 
considerate  and  hospitable  in  their  social  attentions. 
A  reception  and  ball  given  by  Mr.  and  Mrs.  An- 
drews was  brilliant  in  a  marked  degree.  Travellers 

1  Recollections  of  a  Minister  to  France  (1887),  vol.  i,  p.  273. 
*   *  Ibid.,  p.  274. 


OUR  WORK. AT  PARIS 

of  distinction  from  the  United  States,  passing 
through  Paris,  took  occasion  to  pay  their  respects 
to  the  Agent  and  Counsel.  Rear-Admiral  Alden, 
commanding  our  squadron  in  European  waters, 
and  General  Sickles,  were  among  the  callers.  Mr. 
Thomas  H.  Dudley,  who  had  been  the  very  efficient 
Consul  of  the  United  States  at  Liverpool  during 
the  war,  came  to  Paris  in  order  to  consult  with  the 
Counsel.  He  was  of  Quaker  birth,  —  a  man  of  grave 
exterior,  whose  demeanor  indicated  how  completely 
absorbed  he  was  in  the  steps  now  being  taken  to 
right  a  wrong  committed  in  spite  of  his  most  earnest 
protests.  The  verbal  explanations  he  was  able  to 
communicate  must  have  been  of  material  value,  in 
the  arrangement  and  statement  by  Counsel  of  the 
facts  respecting  the  escape  of  the  Confederate 
cruisers.  A  little  later  hi  the  season,  that  most 
delightful  man,  General  Schenck,  our  Minister  at 
London,  came  over  to  Paris,  and  was  in  frequent 
conference  with  Mr.  Davis  and  the  Counsel.1 

1  M.  Desmarecq,  a  French  artist,  had  been  engaged  at  Paris  upon 
a  painting  of  considerable  pretensions  for  some  public  building, 
I  think  the  Signing  of  the  Declaration  of  American  Independence. 
Mr.  Evarts  visited  his  studio.  As  a  descendant  of  Roger  Sherman, 
Mr.  Evarts  considered  that  he  could  impart  freely  his  advice  as  to 
the  proportions  and  look  of  that  historic  figure.  So  felt  and  so  did 
General  J.  Meredith  Read  (our  Consul-General)  with  regard  to  his 
distinguished  progenitor,  George  Read,  whose  face  appeared  in  the 
group.  When  later  another  American  of  distinction  was  brought  to 
view  the  work,  and  was  announced  as  the  Minister  to  England,  the 
artist  upon  presentation  quickly  enquired,  "Had  monsieur  an 
ancestor  there  at  the  signing.?"  "None  whatever,"  said  General 


102          THE  GENEVA  TRIBUNAL 

Next  after  Minister  Washburne,  the  American 
who  was  most  actively  engaged  in  looking  after  our 
wants  was  Doctor  Thomas  W.  Evans,  who  for  years 

Schenck.  "Thank  God  for  that! "  ejaculated  the  artist,  with  an  air 
of  relief.  Curiously  enough,  it  had  befallen  this  artist,  on  another 
occasion,  to  be  brought  into  relation  with  a  descendant  of  Roger 
Sherman  in  amusing  circumstances;  and  it  may  be  permissible  for 
me  to  append  the  following  extract  from  an  interesting  volume  of 
reminiscences,  by  the  late  General  John  Eaton,  recently  published, 
and  entitled  Grant,  Lincoln,  and  the  Freedman :  — 

"I  once  had  occasion,"  says  General  Eaton,  "to  escort  a  French 
painter  of  some  celebrity  through  the  War  Department  in  Washing- 
ton. He  had  been  commissioned  by  Napoleon  to  find  a  subject  for  an 
American  historical  painting,  to  be  placed,  I  believe,  in  the  Opera 
House  in  Paris.  ...  To  West  Point  the  French  artist  —  whose 
name  I  think  was  Delamarque  —  was  especially  anxious  to  go,  and 
I  had  taken  him  to  the  War  Department  in  order  to  facilitate  mat- 
ters for  him.  I  had  presented  him  to  the  Secretary  of  War  and 
secured  letters  for  him  to  the  authorities  at  West  Point,  when,  just 
as  we  were  about  to  leave  the  building,  we  discovered  that  it  was 
raining  so  hard  that  we  drew  back  to  wait  for  the  shower  to  pass. 
It  occurred  to  me  that  General  Sherman's  office  was  just  at  our 
right,  and  without  forewarning  my  guest,  I  threw  open  the  swinging 
door  and  we  went  in.  It  was  a  cruelly  hot  day,  and  General  Sher- 
man was  seated  at  his  desk  in  his  shirt-sleeves  as  hard  at  work  as  any 
of  his  clerks.  He  recognized  me  over  his  shoulder  and  called  out  in 
his  hearty  way,  'How  are  you,  Eaton?'  I  responded  and  at  once 
presented  M.  Delamarque.  The  Frenchman's  amazement  on  hear- 
ing Sherman's  name  got  the  better  of  his  breeding,  for  he  threw  up 
both  hands  and  exclaimed  quite  frankly,  —  and  in  English,  — '  Oh, 
my  God! '  When  the  rain  abated  we  went  on  our  way,  the  French- 
man discoursing  volubly  on  the  astounding  simplicity  and  lack  of 
ceremony  which  he  had  found  in  our  great  men,  —  among  whom 
President  Grant  and  General  Sherman  had  especially  impressed 
him,  for  even  the  shirt-sleeves  had  not  disguised  from  him  Sher- 
man's native  forcefulness  and  grace."  (Page  311.) 


OUR  WORK  AT  PARIS  103 

had  enjoyed  a  reputation  throughout  Europe  as  the 
head  of  his  profession  of  dentistry.  He  had  gained 
fame  in  two  continents  by  having  effected  the  escape 
of  the  Empress  Eugenie,  whom  he  had  personally 
accompanied  from  Paris  and  landed  safely  in  Eng- 
land.1 Doctor  Evans  busied  himself  to  facilitate  the 
means  of  carrying  forward  our  work.  He  placed  at 
our  disposal  very  convenient  rooms,  in  the  upper 
story  of  a  building  in  the  Rue  de  la  Paix  (at  number 
15),  a  few  doors  from  Hotel  Westminster.  In  this 
service  the  Doctor's  assistant,  Doctor  Edward  A. 
Crane,  was  an  efficient  helper.  I  recall  with  pleas- 
ure the  fact  that  he  was  particularly  liked  by  the 
secretaries. 
To  these  quarters  Mr.  John  Davis  brought  boxes 

1  The  temptation  is  too  strong  to  be  resisted;  and  I  must  relate 
an  incident  which  everybody  in  Paris  heard  of  at  the  time  of  its 
occurrence,  but  which  perhaps  may  prove  to  be  new  to  readers  of 
a  younger  generation.  It  is  a  part  of  the  ana  of  the  Geneva  expe- 
riences. 

At  a  large  dinner-party,  in  Paris,  during  the  season  which  is  en- 
gaging our  attention,  Dr.  Evans  talked  a  good  deal  about  this  or 
that  royal  personage,  and  by  way  of  displaying  the  easy  footing 
upon  which  he  had  conversed  with  each  in  turn,  he  recited  remarks 
such  as  only  intimates  are  in  the  habit  of  exchanging.  Mr.  Evarts, 
who  was  seated  at  the  other  end  of  the  table,  observed  how  undue 
was  the  proportion  of  importance  that  this  individual  guest  had 
assumed.  Leaning  forward,  and  speaking  in  that  smiling,  half- 
quizzical  manner  that  betrayed  his  own  keen  enjoyment  of  the 
bright  saying  that  was  about  to  be  uttered,  Mr.  Evarts  remarked: 
"Well,  Doctor,  we  certainly  owe  you  a  debt  of  gratitude.  For  us  it 
is  a  great  thing  even  to  see  a  king  or  prince;  but  it  seems  that  they 
all  have  opened  their  mouths  to  you." 


104          THE  GENEVA  TRIBUNAL 

of  papers,  that  had  been  sent  over  by  the  Depart- 
ment of  State;  and  the  conveniences  for  clerical 
work  were  promptly  secured.  Mr.  Evarts  and  Mr. 
Waite  chanced  not  to  be  in  Paris  when  we  arrived, 
but  they  came  soon  afterward.  With  the  former 
were  Mrs.  Evarts,  the  Misses  Evarts,  and  the 
younger  children,  Louisa  and  Maxwell.  With  Mr. 
Waite  were  Mrs.  Waite  and  Miss  Waite.  Mr. 
Evarts  took  apartments  in  the  Avenue  Josephine, 
while  the  Waites  retained  rooms  at  the  Hotel  West- 
minster. Mr.  Gushing,  after  a  brief  sojourn  at  that 
hotel,  removed  to  a  small  and  convenient  house  in 
the  Rue  Galilee  near  the  Legation,  in  the  neighbor- 
hood of  the  Arc  de  Triomphe.  Mr.  John  Davis  and 
I  later  took  lodgings  at  the  Hotel  des  Etrangers  in 
the  Latin  Quarter. 

On  16th  February  Mr.  Gushing  and  Mr.  Beaman 
went  to  Versailles,  where  they  paid  their  respects  to 
M.  Grevy,  President  of  the  Assembly.  I  was  of  the 
company;  and  I  remember  that  the  visit  was  in 
every  respect  enjoyable.  In  the  afternoon  I  sat 
awhile  in  the  gallery  of  the  Assembly,  where  the 
debate  seemed  to  be  stormy.  Among  the  distin- 
guished men  I  saw  there  T  recall  General  Trochu. 
Later  in  the  season  Mr.  Gushing  called  upon  M. 
Thiers  and  M.  Guizot;  and  we  younger  men  met 
socially  one  or  two  members  of  the  Corps  Legislatif , 
Jules  Ferry  I  remember  as  being  among  the  number. 

By  a  provision  of  Article  IV  of  the  Treaty,  the 
Counter-Case  and  additional  documents,  corre- 


OUR  WORK. AT  PARIS  105 

spondence,  and  evidence  of  each  party  had  to  be 
delivered  to  each  of  the  Arbitrators,  and  to  the 
Agent  of  the  other  party,  within  four  months  after 
the  delivery  of  the  Case.  This  meant  that  our 
Counter-Case  should  be  ready  for  delivery  before 
the  15th  of  April,  1872.  The  Counter-Case  was  de- 
signed to  afford  the  means  of  replying,  hi  the  nature 
of  a  plea,  to  the  Case.  We  did  not  know  in  advance 
what  would  be  the  terms  of  the  British  Case, 
although  we  could  make  a  fairly  good  guess,  taking 
the  original  correspondence  carried  on  at  the  time 
between  the  two  Governments  as  a  guide.1 

As  soon  as  the  three  Counsel  had  come  together, 
at  Paris,  they  united  hi  requesting  the  Agent  of  the 
United  States  to  prepare  the  Counter-Case.  This 
work,  after  full  consultation  with  them,  Mr.  Davis 

1  It  so  happened  that  Great  Britain  may  have  gained  an  advan- 
tage over  us  as  the  result  of  an  accident.  One  of  the  American  coun- 
sel, soon  after  his  appointment,  came  to  Washington,  and  visited  the 
Department  of  State,  for  consultation  with  Secretary  Fish.  Upon 
leaving  the  building,  he  carried  away  a  copy  of  the  Case  of  the 
United  States,  a  secret  document  to  be  most  carefully  guarded.  As 
luck  had  it,  however,  when  the  carriage  was  driven  up  to  the  hotel, 
this  copy  was  missing;  it  had  dropped  into  the  street.  Search  was 
Sn  vain.  Somebody  found  it  who,  knowing  its  value,  took  the  pre- 
cious document  to  the  British  Legation,  and  there  disposed  of  it,  it 
Is  understood,  at  a  bargain.  Thence  it  is  supposed  to  have  promptly 
found  its  way  to  London. 

No  harm  can  now  come  of  the  disclosure  that  the  distinguished 
advocate  who  visited  Secretary  Fish  upon  that  occasion  himself 
subsequently  became  Secretary  of  State.  A  few  persons  in  the 
secret  at  the  time  of  the  mishap  would  rally  the  eminent  lawyer  as 
"a  counsel  who  had  lost  his  Case  before  he  had  opened  it/!  j 


106  THE  GENEVA  TRIBUNAL 

consented  to  perform.  It  meant  a  vast  amount  of 
clerical  labor  to  be  expeditiously  accomplished.  Mr. 
Davis  knew  just  how  to  set  about  the  task.  The 
means,  at  that  day,  of  quickly  putting  text  on 
paper,  and  multiplying  copies,  were  rude.  In  fact, 
the  only  process  that  we  could  resort  to  was  writing 
with  a  prepared  ink  upon  foolscap  sheets,  and  tak- 
ing the  inscription  off  upon  stone.  This  lithographic 
method,  from  the  establishment  of  Chauvin,  Rue  de 
la  Vieille  Estrapade,  was  adopted.  The  finished  pro- 
duct, when  bound  in  two  volumes,  showed  a  vari- 
ety of  handwriting,  but  all  of  it,  I  am  bound  to  say, 
was  fairly  legible. 

Mr.  Davis  organized  a  force  consisting  of  Mr. 
John  Davis  and  Messrs.  Hackett,  Peddrick,  and 
Waite,  and  we  went  to  work  with  a  will  under  the 
superintendence  of  Mr.  Beaman.  To  us  was  added 
Mr.  Henry  Vignaud,  of  New  Orleans,  an  accom- 
plished translator,  who  later  became  Secretary  of 
Legation.  He  was  then  private  secretary  of  Mr. 
Washburne.  Mr.  Vignaud  translated  the  Counter- 
Case  into  French.  Mr.  George  Merrill,  an  American 
lawyer  residing  at  Paris,  had  already  superintended 
certain  translations  into  French,  from  the  evidence 
accompanying  the  Case,  —  two  volumes  that  were 
printed  by  the  8th  of  April. 

Mr.  Beaman  was  usually  present,  himself  working 
harder  than  anybody  else.  Occasionally  we  labored 
well  into  the  night, — once  until  three  o'clock  in  the 
morning. 


OUR  WORK  AT  PARIS  107 

We  liked  to  serve  Mr.  Bancroft  Davis,  for  though 
he  expected  a  good  deal  to  be  accomplished,  he 
never  failed  to  speak  a  generous  word  of  apprecia- 
tion. Frequently  he  came  to  the  rooms.  Our  pro- 
gress was  rapid.  Before  long  the  cheerful  assurance 
was  ours  that  the  documents  would  be  ready  in  good 
season. 

Invitations  came  to  us  plentifully,  some  of  them 
to  artistic  or  musical  circles,  where  we  gained 
glimpses  of  French  society.  One  evening,  I  remem- 
ber, I  met  Gustave  Dor6,  who  must  have  been 
amused  at  my  attempt  to  convey  to  him  (in  French 
of  a  quality  peculiarly  its  own)  a  conception  of  the 
enjoyment  I  had  experienced  not  long  before  in 
looking  over  his  illustrations  of  Dante,  while  I  was 
tarrying  beyond  the  Mississippi.  An  entertainment 
given  at  the  Grand  Hotel  in  furtherance  of  the 
popular  subscription  movement  for  raising  money  to 
pay  off  the  indemnity  to  Germany  was  unique.  The 
room  was  packed.  It  was  a  gathering  aglow  with 
patriotism.  Never  had  I  witnessed  elsewhere,  it 
seemed  to  me,  so  profound  and  united  a  demonstra- 
tion of  love  of  country.  At  the  Lenten  season  I 
heard  the  "Stabat  Mater"  magnificently  rendered 
at  the  Church  of  Saint-Roch,  in  the  Rue  Saint- 
Honore.  I  can  recall,  too,  a  delightful  musicale  at 
the  Salle  Erard. 

As  for  sight-seeing,  I  did  not  fail  to  make  a  begin- 
ning upon  the  round  that  my  red-covered  Galignani 
had  prescribed  for  the  well-regulated  tourist.  This 


108  THE  GENEVA  TRIBUNAL 

guide-book,  I  may  explain,  took  Paris  solemnly.  Its 
didactic  pages  impressed  upon  me,  at  all  events,  the 
impropriety  of  leaving  the  French  capital  without  first 
having  diligently  looked  at  all  "the  objects  of  inter- 
est." One  excursion,  that  to-day  is,  I  dare  say,  per- 
missively  dropped  from  the  list,  consisted  of  a  visit 
to  the  Catacombs.  Our  little  party,  headed  by 
Messrs.  Gushing  and  Waite,  went  to  a  street  aptly 
named  "Rue  d'Enfer";  and  thence,  candle  in  hand, 
descended  by  circular  stairs  —  as  though  going 
down  cellar  —  for,  I  should  imagine,  about  two  hun- 
dred feet.  Though  the  passages  through  which  we 
were  led  were  scrupulously  neat,  and  though  evi- 
dent pains  had  been  taken  to  arrange  skulls  and 
bones  in  an  artistic  fashion,  the  effect,  it  must  be 
confessed,  was  not  exhilarating.  I  found  satisfac- 
tion in  the  thought  that  the  visit  was  not  of  my  own 
planning 

As  for  the  theatres,  I  must  admit  that  the  back- 
ward state  of  my  intimacy  with  the  language  proved 
to  be  a  very  considerable  drawback.  However,  I 
found  pleasure  in  going  rather  frequently  to  the 
Com6die  Franchise,  having  usually  read  the  piece 
beforehand.  While  I  could  not  but  lose  much  at 
certain  points,  I  was  yet  able  to  enjoy  keenly  the 
ineffable  charm  of  the  acting.  On  the  evening  of  the 
10th  of  April,  the  performance  took  on  a  special 
meaning,  for  the  reason  that  it  was  given  for  the 
benefit  of  the  Director,  who  was  retiring  from  his 
post,  after  forty  years  of  service.  The  proceeds 


OUR  WORK  AT  PARIS  109 

amounted  to  eighteen  thousand  francs;  and  the 
good  man  besides  this  sum  was  to  receive  thence- 
forth a  handsome  pension  from  the  State. 

The  most  striking  play  that  I  remember  to  have 
seen  at  any  other  theatre  was  "Rabagas,"  by 
Sardou, — a  drama  alive  with  stirring  political  ac- 
tivities, in  which  the  leading  part]  was  rendered  by 
an  actor  of  wonderful  talent.  The  piece  had  a  very 
long  run.1 

In  fifteen  days  (so  speedy  was  our  work)  the 
manuscript  of  the  Counter-Case,  and  of  the  accom- 
panying documents,  had  been  prepared  and  put  into 
the  hands  of  Counsel.  By  the  12th  of  April,  it  was 
printed  and  bound,  ready  for  the  Agent  to  take  to 
Geneva.  Mr.  and  Mrs.  Davis  left  Paris  on  that  date. 
It  had  been  arranged  that  the  Agents  and  the  Secre- 
tary should  be  at  Geneva  on  the  15th,  where  they 
would  exchange  the  respective  Counter-Cases  with- 
out requiring  the  presence  of  the  Arbitrators  to 
receive  their  copies.  General  Gushing  and  Mr.  Bea- 

1  It  may  be  of  interest  to  give  here  the  names  of  the  guests  at  one 
of  the  dinner-parties  of  that  season.  I  do  so  with  less  scruple,  be- 
cause the  host  was  an  official,  —  the  Consul-General  of  the  United 
States  for  France,  —  General  John  Meredith  Read,  of  Philadel- 
phia. 

There  were  present  (2  April)  at  his  residence  in  the  Avenue 
d'Antin,  General  Schenck,  M.  Le"on  Say  (Prefect  of  the  Seine,  soon 
to  become  Minister  of  Finance),  General  Gushing,  Mr.  Waite,  Gen- 
eral Butterfield,  General  Woodhull  (Secretary  of  Legation,  Lon- 
don), Mr.  Beaman,  Mr.  Philip  Stanhope  (son  of  Earl  Stanhope), 
Mr.  Tiffany  of  Baltimore,  Mr.  Warren  of  Troy,  New  York,  Mr. 
Johnson,  and  Mr.  Hackett. 


110  THE  GENEVA  TRIBUNAL 

man  also  went  to  Geneva,  but  by  a  different  route 
from  that  taken  by  the  Agent, 

The  Counter-Case  of  the  United  States  was  de- 
livered at  Geneva,  on  the  15th  of  April,  to  Mr. 
Favrot  for  the  British  Agent  and  for  the  Arbi- 
trators.1 

Mr.  Davis  says  of  the  British  Agent,  at  this  meet- 
ing, "Lord  Tenterden  met  me  at  Geneva  in  April 
with  unreserve  and  in  the  spirit  of  conciliation."  * 
The  remark,  and  what  followed  of  Mr.  D avis's 
report,  was  significant  because,  early  in  February,  a 
storm  had  broken  forth  in  England,  and  continued  to 
rage,  so  as  to  threaten  the  disruption  of  the  Treaty. 
The  "indirect  claims,"  and  the  excitement  that  took 
possession  of  England  because  of  their  inclusion  in 
the  American  Case,  will  form  the  subject  of  a  later 
chapter. 

On  the  13th  of  April,  I  left  Paris  by  an  early 
morning  train,  the  bearer  of  despatches  to  our  Le- 
gation at  London.  I  took  with  me  a  copy  of  the 
Counter-Case,  and  accompanying  documents,  to  be 
delivered  to  our  Minister,  General  Schenck.  The 
day  was  charming.  This  being  my  first  visit  to  Eng- 
land, I  enjoyed  every  moment  of  the  journey.  In  a 

1  "The  volume  of  evidence  accompanying  the  Counter-Case  was 
selected  and  arranged  under  the  directions  of  the  Counsel.  At  the 
same  time  I  delivered  French  translations  of  selected  pieces  from 
the  seven  volumes  of  evidence  submitted  with  the  Case  in  Decem- 
ber." Davis's  Report  to  Fish  (21  September,  1872),  Gen.  Arb.,  vol. 
iv,  pp.  5,  6. 

2  Ibid. 


OUR  WORK  AT  PARIS  111 

sense  I  looked  upon  my  mission  as  a  kind  of  sortie 
into  the  camp  of  our  opponents,  though  conscious  of 
not  a  particle  of  hostility  to  our  "  English  cousins, " 
except  officially  on  paper.  I  wanted  to  see  them  on 
their  own  soil. 

The  purely  personal  experiences  in  London  of  a 
single  younger  member  of  the  American  party  are 
perhaps  of  no  particular  consequence.  Yet  some  of 
the  notes,  jotted  down  at  that  time,  may  at  this  late 
day  possess  value,  seeing  how  extensive  have  been 
the  changes  in  that  great  city  since  the  year  1872.  I 
may  be  permitted,  therefore,  to  draw  upon  these 
notes  as  at  least  telling  what  was  happening  to  one 
of  the  party  during  the  breathing-spell  of  the  few 
days'  cessation  of  clerical  work,  before  entering 
upon  the  duty  of  taking  down  at  dictation  that  por- 
tion of  the  Argument  assigned  to  my  chief. 

What  is  peculiar  about  crossing  the  Channel  is  — 
that  it  is  a  bundle  of  deceptions.  This  time  the  sea 
was  as  smooth  as  glass,  whereas  we  had  made 
arrangement  for  two  hours  of  wretchedness.  Again, 
it  may  at  starting  be  as  quiet  as  you  could  wish,  and 
five  minutes  later  you  are  fortunate  if  you  are  not 
wet  through.  The  harbor  of  Calais  is  shallow,  con- 
sequently the  boats  are  of  light  draft,  and  absurdly 
small.  People  are  huddled  together  in  a  style  that 
would  be  ludicrous,  were  it  not  for  its  serious  aspect. 
Our  steamer,  which  wore  a  jaunty  look  from  her 
raking,  white  smoke-funnels,  was  under  command  of 


112  THE  GENEVA  TRIBUNAL 

a  French  captain;  and  the  crew  of  the  same  nation- 
ality displayed  true  French  politeness,  for  when- 
ever a  sailor  had  occasion  to  come  in  the  way  of  a 
passenger,  to  disturb  him  in  the  slightest,  the  act 
was  prefaced  with  a  "  Pardon,  Monsieur,"  —  a  little 
thing,  but  noticeable. 

When  we  got  in  at  Dover  pier,  we  could  look  up, 
forty  or  fifty  feet,  and  see  a  crowd  of  people  staring 
down  at  us,  men,  women,  and  children,  with  here  and 
there  the  red  uniforms  (their  caps  cocked  to  one 
side)  of  privates  in  Her  Majesty 's  service.  The 
arrival  of  the  mail  at  Dover  must  be  an  important 
event,  so  many  persons  feel  it  a  duty  to  be  there 
to  attend  to  it. 

Dover  Castle,  whose  walls  occupy  thirty-five 
acres,  looked  as  though  it  might  interest  a  visitor 
for  an  hour  or  more.  The  cliffs  at  Dover  are  won- 
derfully high,  steep,  and  white.  As  the  sea  was  run- 
ning somewhat  boisterously,  the  effect  of  the  cliffa 
as  a  background  was  beautiful,  not  to  say  striking. 
One  I  note  is  called  Shakespeare  Cliff.  An  ocean 
steamer  was  passing,  flying  the  German  flag,  and  I 
could  not  help  thinking  of  the  lines  in  King  Lear 
and  applying  them  to  the  bigness  of  her  hull. 

The  railway  carriages,  which  are  substantial  and 
tolerably  comfortable,  are  divided  into  first,  second 
and  third  class.  As  I  got  in  at  Dover  pier,  I  secured 
a  seat  for  London,  first-class.  The  carriage  interior 
was  furnished  in  heavy  brown  wood,  with  black 
cushions.  The  other  occupants  of  the  carriage  were 


OUR  WORK  AT  PARIS  113 

an  old  gentleman,  his  wife,  or  perhaps  maiden  sister, 
a  possible  sister-in-law,  and  a  third  of  that  sex, 
whom  I  took  to  be  a  lady's  maid.  The  old  gentle- 
man might  have  been  rising  seventy.  He  was  dressed 
in  black.  He  wore  a  silk  travelling-cap  and  a  pair  of 
gold-bowed,  aristocratic-looking  spectacles.  A  news- 
paper which  he  held  in  his  hand  was,  of  course,  the 
Times.  My  new-found  friend  was  the  picture  of 
comfort.  He  appeared  contented  and  at  peace  with 
all  mankind.  He  did  not  grumble  at  anything,  nor 
did  the  good  lady  beside  him;  she  sat  and  smiled 
vacantly  out  of  the  window  until  the  guard  locked 
the  door,  when  she  took  occasion  to  exclaim,  "Ah, 
there  they  go  locking  us  in,  like  so  many  cattle, — 
we've  got  back  to  that  system  now." 

The  country  through  which  the  train  ran  was 
pretty, —  most  of  the  estates  divided  by  hedges, 
about  as  high  as  a  man's  shoulder,  houses  tiled  in 
red,  or  thatched,  —  a  few  houses  standing  by  them- 
selves, but  most  of  them  grouped  hi  villages.  The 
road  crosses  the  highway  by  bridges,  above  or  below 
it,  never  at  grade,  and  so  the  whistle  is  sparingly 
used.  Pedestrians  are  to  be  seen  walking  down  the 
smooth,  narrow  roads, —  lanes  with  high  walls  of 
stone  or  hedges  of  green,  twisting  around  unex- 
pected corners.  Women  and  children,  and  some 
men,  picking  hops,  stand  quietly  and  look  at  the 
passing  train.  A  group  of  children  cheer,  just  as  they 
sometimes  do  in  America,  as  though  there  were  any 
particular  merit  about  us;  but  then  perhaps  they 


114  THE  GENEVA  TRIBUNAL 

would  not  have  cheered  a  freight  (or  as  the  English 
call  it,  I  believe,  a  merchandise)  train;  so  we  may 
take  it  to  be  a  tribute  to  us  passengers,  I  suppose, 
after  all. 

We  were  whirled  through  several  tunnels,  over  a 
country  slightly  rolling  and  not  very  woody,  where 
there  were  many  hayricks  standing  in  the  fields  cov- 
ered with  straw,  in  readiness  for  the  winter.  Chisel- 
hurst,  a  charming  spot,  to  judge  from  one  or  two 
glimpses,  brought  to  mind  of  course  its  distin- 
guished occupant,  the  former  Empress  Eugenie  of 
France. 

My  impression  is  that  we  did  not  stop  once  on  our 
way  up  to  London.  The  entrance  to  the  city  is  some- 
what abrupt  —  no  clumps  of  houses  doing  picket 
duty,  as  it  were;  but  right  out  of  little  farms  and 
vegetable  garden  plots,  one  comes  all  of  a  sudden  in 
among  the  low,  uniform,  dull-brick  tenements,  that 
mean  London.  The  first  landmark  we  made  was 
Sydenham,  where  the  Crystal  Palace  of  the  Great 
Exhibition  of  1851  was  standing. 

You  are  brought  into  London  on  a  level  somewhat 
over  the  tops  of  houses.  These  houses  are  of  two  or 
three  stories  in  height,  built  of  brick  of  a  large 
mould,  which  originally  may  have  been  of  dull  yel- 
lowish brown  color,  but  are  now  almost  black  from 
exposure  to  the  weather.  Trains  are  moving  in  every 
direction,  and  the  network  of  rails  is  marvellous. 
We  cross  the  Thames,  and  run  into  Cannon-Street 
Station.  As  we  cross,  we  see  St.  Paul's,  a  grim  pile 


OUR  WORK  AT  PARIS  115 

of  black-and-white  stone;  the  Houses  of  Parliament, 
with  the  high  square  tower,  the  bridges  solid  yet 
handsome,  and  innumerable  vessels  in  the  stream. 
At  Cannon-Street  Station  a  crowd  of  young  men 
stood  in  waiting,  apparently  clerks,  just  over  with 
the  work  of  the  day.  Soon  a  train  ran  in;  these 
young  fellows  packed  aboard,  with  full  as  much 
hurry  as  we  Americans  exhibit,  and  off  they  went. 
They  were  a  sober-looking  group,  all  wearing  tall 
hats,  perhaps  better  dressed,  but  not  so  bright-look- 
ing, I  fancied,  as  a  collection  of  young  men  similarly 
employed  in  the  United  States. 

Then  we  backed  out,  and  three  or  four  minutes 
served  to  bring  us  around  to  the  station  at  Charing- 
Cross.  Cannon-Street  Station  is  nearer  "  the  City," 
so  called;  that  is,  the  Bank  of  England,  the  Ex- 
change, and  the  great  business  portion  of  London. 
Charing-Cross  is  at  least  a  mile  to  the  westward,  and 
is  laid  down  in  your  guide-books  as  the  focus  whence 
radiate  all  the  lines  of  travel  over  London. 

After  a  short,  and  apparently  a  meaningless,  ex- 
amination of  baggage,  I  was  free  to  go,  and  I  walked 
into  the  Charing-Cross  Station  Hotel.  The  estab- 
lishment, of  course,  was  thoroughly  English,  that  is 
to  say,  it  was  not  like  our  American  hotels.  The 
"  bar,"  as  it  was  termed,  answers  in  some  measure  to 
what  we  at  home  call  the  "  Office."  It  is  spacious, 
and  two  or  three  women  do  the  work  of  clerks, — 
keep  the  keys  of  rooms,  the  accounts,  and  what  is 
more,  a  quantity  of  liquor,  that  can  be  ordered  in 


116          THE  GENEVA  TRIBUNAL 

the  coffee-room.  A  bright  fire  burns  inside  the  bar, 
in  cold  months;  and  a  pot,  of  goodly  size,  holds 
warm,  or  rather  hot,  water,  for  the  preparation  of 
such  beverages  as  require  it.  The  bar  has  a  cosy, 
comfortable  look.  Some  of  the  rooms,  especially 
large  and  desirable  front  rooms,  are  not  numbered 
but  named,  such  as  "  The  Sun,"  "  The  George,"  "  The 
Kent,"  etc.  "  Put  a  fire  in  '  The  Sun ' "  now  becomes 
intelligible.  At  the  head  of  the  first  flight  of  stairs, 
I  observed  another  retreat,  somewhat  resembling 
the  bar,  where  a  huge  copper  cylinder  was  kept  fur- 
nished with  hot  water,  heated  by  means  of  spirit- 
lamps. 

The  Strand  is  a  street  that  many  a  visitor  to 
London  first  sees.  It  appeared  to  have  no  architec- 
ture to  boast  of.  It  is  a  street  of  ordinary  width, 
crowded  with  buildings,  three  or  four  stories  in 
height,  and  by  no  means  imposing.  The  shops  are 
not  deep,  and  hi  many  cases  the  windows  are  not 
modern.  The  street  is  somewhat  crooked,  and  the 
sidewalks,  of  flagstones,  are  none  too  broad.  The 
stories  over  the  shops  would  appear  to  be  used  as 
dwellings. 

Passing  a  narrow  arch  that  looked  like  an  obsta- 
cle, with  no  claim  to  usefulness  or  beauty,  called 
"Temple  Bar,"  *  you  get  into  Fleet  Street,  where 

1  "  We  now  arrive  where  (till  1878)  Temple  Bar,  black  and  grimy 
in  much  sooty  dignity,  ended  the  Strand  and  marked  the  division 
between  the  City  of  London  and  the  Liberty  of  Westminster.  .  .  . 
The  last  stone  was  removed  June  14, 1879."  Hare's  Walks  in  London 
(1901),  vol.  i,  p.  52. 


OUR  WORK  AT  PARIS  117 

are  numerous  offices  of  those  newspapers  and  mag- 
azines with  which  almost  every  reader  is  familiar. 
Here,  too,  is  the  office  of  the  enterprising  New 
York  Herald,  whose  manager,  Dr.  Hosmer,  in- 
formed me  that  they  paid  more  for  special  tele- 
graphing (as  nearly  as  I  can  remember)  in  one 
month  than  all  the  press  of  England  in  a  year. 

The  omnibuses  are  legion.  There  are  two  seats 
on  either  side  of  the  driver,  who  is  always  a  hale, 
hearty  fellow.  One  old  party,  with  a  bottle  nose, 
told  me  that  he  drove  sixteen  hours  a  day,  and  he 
looked  very  much  as  though  he  was  satisfied  that  I 
believed  him.  The  driver  is  provided  with  a  big 
rubber  coat,  which  the  conductor  slips  over  him 
when  it  begins  to  rain.  There  is  also  an  immense 
boot  for  his  further  protection,  labelled  "London 
Omnibus  Directory."  The  conductor  stands  on  a 
little  platform,  about  halfway  up  the  side  of  the 
door,  on  the  left,  as  you  get  in.  Here  he  can  look 
ahead,  over  the  top  of  the  coach,  and  yet  be  ready  to 
help  a  passenger  in.  He  cries  out  in  a  loud  voice  the 
route  of  his  'bus,  and  is,  for  every  moment,  on  the 
watch  for  passengers.  There  are  also  seats  outside, 
running  lengthwise,  on  top  of  the  'bus.  The  horses 
appear  to  be  kept  in  good  condition,  though  I  think 
they  are  not  so  stout  as  those  of  the  Normandy 
breed.  In  Paris,  curiously  enough,  most  of  the 
horses  upon  omnibus  lines  are  white.  I  noticed  no 
such  peculiarity  in  London.  The  law  of  the  road  hi 
England  (in  Scotland,  too)  is  to  keep  to  the  left. 


118  THE  GENEVA  TRIBUNAL 

We  went  by  hansom  to  the  Exchange.  It  rained 
fast,  so  London  was  in  its  element.  Nobody  seemed 
to  mind  the  rain ;  it  did  not  interfere  with  business  or 
even  pleasure,  that  I  could  see.  Every  one  looks  for 
it,  and  prepares  himself  accordingly.  Rubber  over- 
coats appear  as  suddenly  as  the  showers  do;  and  you 
see  the  occupant  of  a  cab  adjusting  his  garment 
quietly  over  his  shoulders,  in  a  mechanical  way  — 
thinking  probably  of  business,  or  of  where  he  is 
going,  or  of  anything  else  than  of  the  weather.  A 
Londoner  and  his  umbrella  are  inseparable.  If  he  is 
in  a  cab,  he  uses  his  folded  umbrella  as  a  kind  of 
rudder  to  the  craft,  by  sticking  it  up,  to  the  right  or 
left,  so  as  to  indicate  to  the  man  aloft  the  direction 
in  which  to  drive. 

I  gained  a  piece  of  information  as  to  architecture, 
while  riding  on  the  top  of  a  'bus.  We  were  passing 
Somerset  House,  when  one  of  the  passengers,  who 
somehow  had  discovered  that  I  was  from  "the 
States,"  turned  to  me,  and,  pointing  to  the  large 
front  of  those  buildings,  remarked  in  a  quick,  ner- 
vous tone,  "Just  like  Chick-a-go."  I  must  have 
looked  not  a  little  puzzled,  for  he  repeated  the  re- 
mark two  or  three  times,  "Like  Chick-a-go,  —  built 
on  piles,  you  know!" 

The  streets,  narrow  and  crooked  most  of  them,  are 
by  day  crowded  with  pedestrians,  though  somewhat 
deserted  at  night.  At  the  Exchange  is  beheld  one  of 
the  busiest  sights  in  the  world.  Eight  important 
thoroughfares  centre  here,  all  pouring  in  an  endless 


OUR  WORK  AT  PARIS  119 

throng  of  foot-passengers,  and  of  carriages,  from 
cabs,  omnibuses,  and  lumbering  wagons  down  to 
miniature  two-wheeled  carts,  drawn  by  the  smallest 
of  donkeys.  At  times  you  will  see  a  funeral  thread- 
ing its  way  through  a  maze  of  vehicles, — a  hearse, 
high,  and  adorned  with  huge  black  plumes,  hired 
mourners,  with  a  yard  of  crape  for  a  hat-band,  and 
stately  carriages,  to  the  number  of  half  a  dozen,  cov- 
ered with  the  gloomiest  black  cloth  imaginable, — 
the  whole  affair  a  striking  contrast  to  the  bustle  and 
activity  of  the  surroundings. 

In  a  sweeping  fashion  one  is  tempted  to  remark 
that  London  externally  has  little  about  it  that  is  at- 
tractive. The  houses,  for  the  most  part,  are  of  brick, 
once  yellowish,  now  of  a  greenish,  brown  or  black, — 
most  of  the  facings  of  a  dingy  hue,  that  began  by 
being  of  a  cream  color.  Some  houses  have  stuccoed 
fronts,  of  a  like  yellowish  tint,  which  affords  a 
slightly  gayer  appearance  than  plain  brick.  Sub- 
stantial buildings  they  are,  that  look  as  though  they 
mean  to  last,  —  of  three  or  four  stories  ordinarily. 
The  shops,  as  I  have  already  said,  are  not  deep. 
Many  of  the  windows  are  bowed  with  sills  high 
from  the  ground,  like  windows  that  were  old-fash- 
ioned in  New  England  when  I  was  a  boy,  and  have 
long  since  disappeared  from  there. 

Street  names  (which  are  important  signs  for  the 
traveller)  are  painted  in  bold,  black  lettering,  on  a 
large  yellowish  ground,  at  the  corners.  Gas-posts 
are  high  and  strong,  with  no  suggestion  of  ornament. 


120          THE  GENEVA  TRIBUNAL 

Fences  around  the  parks  have  been  put  there  as  if 
not  to  be  disturbed  for  centuries.  There  are  no  cel- 
larways,  but  numerous  "areas."  Doors  have  two 
bells.  On  the  right,  one  is  labelled  "  visitors,"  on 
the  left,  "servants."  Sidewalks  are  mostly  of  flag- 
ging; and  in  front  of  each  house  you  will  find  a  grat- 
ing over  a  coal-hole.  Roofs  are  tiled  or  slated,  with 
here  and  there,  on  a  lately  constructed  building,  a 
French  mansard  slated  roof. 

Workmen  wear  no  distinctive  dress,  as  that  of  the 
blue  blouse  hi  Paris.  Every  crossing  that  is  much 
used  is  likely  to  have  a  poor-looking  object,  in  the 
shape  of  a  man,  at  work, — or  rather  you  seldom 
chance  to  see  him  actually  at  work,  for  there  is  n't 
much  to  do,  sweeping  away  the  mud  or  dirt, — and 
he  never  fails  to  extend  a  hand  for  small  change. 
Street-begging  is  not  forbidden;  and  thinly  clad, 
miserable-looking  women  will  be  seen,  many  a  one 
carrying  an  effective  baby. 

Oxford  and  Regent  Streets  have  the  finest  shops. 
Just  off  Oxford  Street,  and  in  streets  parallel  to  it, 
you  will  come  upon  squalid  wretchedness.  One  is 
struck  with  the  recurrence  of  signs  of  outfitting- 
establishments,  and  of  the  many  trunk  and  valise 
shops,  so  that  it  seems  as  if  all  England  were  doing 
nothing  but  travel.  Certain  shops  have  outfits  for 
India.  Many  a  dealer,  no  matter  in  what,  who 
aspires  to  be  somebody,  is  under  the  patronage  of 
the  Royal  Family;  and  a  certificate  from  the  proper 
officer  is  framed  and  placed  in  the  window  to  attest 


OUR  WORK  AT  PARIS  121 

that  inspiring  and  highly  important  fact.  One  man, 
in  Regent  Quadrant,  caters  to  Americans,  by  adver- 
tising his  saddles  and  bridles,  in  great  letters  on  his 
windows,  "To  the  President  of  the  United  States, " 
—  and  certainly  General  Grant  is  a  good  judge  of 
the  set  of  a  saddle. 

Having  safely  delivered  the  despatch-bag  at  the 
Legation,  I  was  for  a  day  or  two  free  to  look  about 
London.  A  dinner  at  General  Schenck's  afforded  me 
the  pleasure  of  meeting  the  Misses  Schenck,  who 
kept  house  for  their  father  hi  Great  Cumberland 
Place,  Hyde  Park.  It  needed  little  discernment  for 
me  to  note  how  admirably  the  young  ladies  were 
fitted  for  the  responsible  position  of  socially  repre- 
senting their  country  in  England.  All  three  exhib- 
ited a  sprightly  wit,  and  a  familiarity  with  what  was 
going  on  in  political  and  diplomatic  circles.  Culti- 
vated and  resourceful,  each  must  have  proved  her- 
self a  real  helper  to  the  Minister,  at  a  tune  when 
important  social  duties  called  for  the  exercise  of 
unusual  judgment.  As  for  the  Minister  himself,  it  is 
enough  to  say  that  no  one  who  had  ever  come  under 
the  charm  of  his  conversation  was  likely  to  forget 
it.  General  Adam  Badeau,  military  attache  of  the 
Legation,  —  a  soldier  and  an  author,  —  was  also  a 
guest.  He  had  been  on  General  Grant's  staff;  and 
his  biography  of  Grant  was  a  book  much  read  in  its 
day. 

That  my  brief  stay  in  London  was  so  pleasurable 


122  THE  GENEVA  TRIBUNAL 

was  largely  due  to  the  attentions  of  General  Max- 
well Woodhull,  Secretary  of  Legation,  a  young  man 
of  many  attractive  qualities.  He  had  served  on  the 
staff  of  General  Schenck  during  the  war;  and  was,  I 
believe,  the  youngest  soldier  in  the  Army  to  have  the 
rank  (brevet)  of  brigadier-general.  He  took  me  to 
the  Club,  and  most  good-naturedly  accompanied 
me  in  some  of  my  sight-seeing  trips. 

In  the  House  of  Lords  I  listened  to  a  speech  from 
the  Lord  Chancellor  (Hatherley)  upon  a  bill  pro- 
posing to  abolish  the  right  of  appeal  to  the  House 
of  Lords.  He  spoke  in  a  hesitating  manner.  Of  Lord 
Cairns  and  Lord  Granville,  all  that  I  can  rescue 
from  my  meagre  diary  is  the  fact,  for  what  it  may 
be  worth,  that  each  had  red  hair.  I  saw  Mr.  Glad- 
stone in  the  Commons,  and  Mr.  Disraeli.  As  was 
natural  for  a  young  lawyer,  I  visited  the  courts, 
though  I  confess  it  was  done  after  rather  a  hurried 
fashion. 

Mr.  John  Davis  having  joined  me  in  London, 
we  returned  in  company  to  Paris.  Our  headquarters 
in  London,  I  should  have  stated,  were  at  the  office 
of  the  Despatch  Agent  for  the  United  States,  Mr. 
B.  F.  Stevens  (1833-1904),  at  17,  Henrietta  Street, 
Covent  Garden.  I  remember  Mr.  Stevens  well,  for 
he  was  obliging  and  attentive.  He  came  from  Ver- 
mont, and  had  lived  in  London  for  many  years.  I 
found  his  conversation  unusually  interesting,  — 
particularly  about  books.1 

1  When  a  small  boy  it  was  the  height  of  my  ambition  to  cross  the 


OUR  WORK  AT  PARIS  123 

Our  Legation,  I  may  add,  was  at  number  five, 
Westminster  Building,  Victoria  Street.  I  made  there 
the  acquaintance  of  Mr.  Moran,  First  Secretary, 
who  had  long  been  in  the  diplomatic  service,  and 
who  later  became  Minister  to  Portugal.  Davis  and  I 
left  Charing  Cross,  at  seven  o'clock  in  the  morning 
of  the  19th,  crossed  in  the  Petrel,  —  the  Channel  a 
little  rough,  —  breakfasted  at  Calais,  and  at  six 
o'clock  in  the  afternoon  we  were  being  driven  in 
a  cab  through  the  streets  of  Paris,  now  become 
familiar.  It  seemed  as  if  we  had  reached  home. 

Making  what  he  described  as  a  pleasant  trip,  Mr. 
Cushing,  on  the  20th  of  April,  returned  from  Gen- 
eva. It  was  now  in  order  to  proceed  with  the  pre- 
paration of  the  Argument,  which  under  the  terms  of 
the  Treaty  had  to  be  ready  to  be  laid  before  the 
Tribunal  by  the  15th  of  June.  For  a  while,  however, 
work  in  this  direction  was  suspended,  because  it 
looked  as  if  the  Arbitration  itself  would  never  take 
place.1  A  period  ensued  when  there  was  little  to  do. 
The  delay  had  the  result  of  doubling  the  volume  of 
work  for  the  month  of  May,  when  I  was  frequently 
at  the  desk,  to  begin  the  day,  as  early  as  six  o'clock 
in  the  morning. 

ocean,  go  to  London,  and  visit  the  Thames  Tunnel,  —  then  reck- 
oned one  of  the  wonders  of  the  world.  In  1872, 1  had  forgotten  all 
about  it. 

1  In  a  later  chapter  we  shall  see  what  an  extraordinary  excite- 
ment prevailed  in  England  over  the  "Indirect  Claims";  and  how 
their  inclusion  in  the  American  Case  camp  perilously  near  breaking 
up  the  Treaty. 


124  THE  GENEVA  TRIBUNAL 

My  chief  commanded  a  marvellously  large  vocab- 
ulary, nor  was  he  ever  at  a  loss  for  a  word  to  ex- 
press himself  with  precision.  He  was  at  home  in 
several  languages.  He  spoke  Spanish  in  its  purity. 
French  he  knew  thoroughly,  and  he  had  been  in  the 
habit  for  years  of  constantly  speaking  it.  Now  he 
availed  himself  of  a  fresh  opportunity  to  improve 
his  accent.  Accordingly,  one  of  the  first  things  he 
had  done,  upon  settling  down  in  Paris,  was  to  secure 
the  attendance  of  a  rising  avocat,1  a  highly  culti- 
vated young  man,  who  used  to  pay  a  visit  each 
morning  and  engage  in  an  animated  conversation, 
chiefly  upon  the  topics  of  the  day.  By  this  means 
Mr.  Gushing  not  only  derived  benefit  as  from  what 
might  be  called  a  "dress  rehearsal,"  but  got  in  touch 
with  a  good  deal  that  was  going  on  in  law  and 
politics,  and  learned  what  young  France  thought 
about  it. 

The  Argument  of  the  United  States  at  Geneva 
was  a  composite  work — each  Counsel  having  taken 
it  upon  himself  to  contribute  certain  chapters.  To 
Mr.  Waite  fell  the  duty  of  setting  forth  the  facts 
with  regard  to  the  building  and  the  escape  of  the 
cruisers,  their  depredations,  and  the  treatment  ac- 
corded to  their  commanders  in  British  colonial 
ports.  The  simple  terms  in  which  Mr.  Waite  has 
told  the  story,  in  chapters  six  to  ten  inclusive,  are 
a  credit  to  his  skill  as  a  writer. 

1  M.  Mir,  now  and  for  some  time  past,  a  member  of  the  French 
Senate,  representing  the  Department  of  Aude. 


OUR  WORK  AT  PARIS  « 125 

Those  who  are  familiar  with  the  style  of  Mr. 
Evarts  can  easily  detect  the  portions  of  the  Argu- 
ment furnished  by  him.  The  first  and  second  chap- 
ters are  his,  entitled  "  Introduction  "  and  "  The  Con- 
troversy submitted  to  Arbitration."  The  opening 
sentence  of  the  latter  chapter  contains  ninety-seven 
(97)  words;  the  second  sentence  no  less  than  one 
hundred  and  two  (102).  Mr.  Evarts  always  pre- 
sented his  thoughts  in  a  lucid  form;  his  reasoning 
was  forcible  in  spite  of  a  predilection  for  sentences  of 
extraordinary  length.1  He  likewise  is  the  author  of 
the  eleventh  chapter,  "  Consideration  of  the  Duty  of 
Great  Britain,  as  established  and  recognized  by  the 
Treaty,  in  regard  to  the  offending  vessels,  and  its 
failure  to  fulfil  them  as  to  each  of  said  vessels."  The 
twelfth  is  to  be  credited  to  him,  "The  Failure  of 
Great  Britain  to  fulfil  its  duties  as  established  and 
recognized  by  the  Treaty,  considered  upon  the 
Facts." 

Mr.  Evarts  wrote  as  he  spoke,  fluently,  and  with 
animation,  —  the  piece  was  always  impregnated 
with  thought.  In  his  day  it  was  the  opinion  of  the 
Justices  of  the  Supreme  Court  of  the  United  States 
that  no  lawyer,  of  those  accustomed  to  try  causes 

1  "With  regard  to  the  translations  of  some  of  our  documents,  I 
may  mention  that  I  got  so  much  entangled  in  one  of  Mr.  Evarts's 
long  and  obscure  sentences  that  I  had  to  tell  him  it  could  not  be  put 
into  French;  to  which  he  coolly  replied,  '  That  shows  the  poverty  of 
the  French  language.'  He  amended  the  sentence,  however,  but  did 
not  make  it  more  clear."  MS.  Letter  of  Henry  Vignaud,  19  Sep- 
tember, 1907. 


126  THE  GENEVA  TRIBUNAL 

before  them,  was  listened  to  with  greater  deference, 
or  was  more  persuasive  in  his  argument,  than  this 
distinguished  leader  of  the  New  York  Bar.  Mr. 
Evarts's  knowledge  of  international  law  and  diplo- 
matic precedents  could  not  be  said  to  be  extensive  or 
profound.  This  was  a  field  in  which  Caleb  Gushing 
was  a  master.  But  the  New  York  advocate  found 
himself  perfectly  at  home  in  the  region  of  the  com- 
mon law,  and  in  that  of  American  constitutions  and 
statutes.  It  is  sufficient  to  say  of  his  share  in  the 
Argument  that  it  was  worthy  of  his  great  reputa- 
tion. 

To  Mr.  Gushing,  the  Senior  Counsel,  was  entrusted 
the  preparation  of  the  third  and  fourth  chapters, 
together  with  two  subdivisions  of  the  important 
closing  chapter  (the  thirteenth)  upon  the  nature  and 
amount  of  the  damages  to  be  awarded.  The  third 
chapter  is  entitled  "  General  Discussion  of  Questions 
of  Law  " ;  and  the  fourth  "  Miscellaneous  Considera- 
tions." The  reader  meets  with  no  difficulty  in  recog- 
nizing Cushing's  style,  —  strong,  forcible,  hurrying 
on  impetuously  from  one  crisp  statement  to  an- 
other, —  at  some  places  discharging  a  perfect  volley 
of  sharp,  stinging  sentences.  Throughout  there  pre- 
vails a  tone  of  confident  assertion. 

Gushing  cherished  a  cordial  dislike  for  certain 
phases  of  the  English  character,  and  of  this  feeling 
he  made  no  secret.  In  the  freedom  of  familiar  talk, 
when  referring  to  Englishmen  he  was  accustomed  to 
speak  of  their  "  insular  prejudices."  He  purposely 


OUR  WORK  AT  PARIS  127 

landed  in  France,  and  when  he  took  passage  for 
home,  it  was  from  a  French  port.  He  firmly  believed 
that  the  British  Government  were  by  design  hostile 
to  us  during  our  troubles,  —  believed  that  they 
hoped  to  see  the  Southern  Confederacy  victorious. 
Thus  convinced,  it  was  not  at  all  strange  that  the 
feeling  which  this  belief  aroused  should  have  made 
itself  visible  in  the  tone  and  color  of  the  chapters 
contributed  by  him  to  the  Argument.  At  least  one 
passage  (and  there  may  have  been  others)  in  the 
original  draft  was  of  a  temper  so  pronounced  that 
Bancroft  Davis  was  moved  to  suggest  an  expression 
that  should  be  a  little  more  discreet,  a  change  which 
Mr.  Gushing  with  the  utmost  good-nature  at  once 
effected. 

A  single  quotation  will  suffice  to  show  how  plainly 
Mr.  Gushing  asserts  what  he  believes  to  have  been 
the  truth  as  to  procedure  on  the  part  of  high  officials. 
Speaking  of  the  practical  inefficiency  of  the  Foreign 
Enlistment  Act  of  1819,  he  avers:  — 

"  The  same  insufficiency  manifested  itself  in  the  legal 
proceedings  in  the  case  of  the  Alexandra  in  such  degree  as 
to  throw  contempt  and  ridicule  upon  the  whole  Act. 
Quibbles  of  verbal  criticism,  fit  only  for  insignificant 
things  of  mere  domestic  concernment,  pervaded  the  opin- 
ions of  the  great  judges  of  England  in  a  matter  closely 
affecting  her  international  honor  and  foreign  peace.  It 
needs  only  to  read  the  report  of  this  trial  to  see  how  ab- 
surd is  the  hypothesis  of  the  English  Case  and  Counter- 
Case,  in  arguing  that  any  question  of  peace  and  war, 


128          THE  GENEVA  TRIBUNAL 

between  Great  Britain  and  other  Governments,  is  to  be 
determined  according  to  the  provisions  of  that  Act,  and 
that  in  such  a  transcendent  question  the  British  Minis- 
ters are  under  the  necessity  of  floundering  along  in  the 
flat  morass  of  the  meaningless  verbosity  and  confused 
circumlocution  of  any  Act  of  Parliament."  1 

Let  it  not  be  thought,  however,  that  this  eminent 
lawyer  was  so  constituted  that  he  could  not  justly 
appreciate  the  greatness  of  England.  In  fairness  to 
Mr.  Gushing  I  may  anticipate  a  little  and  quote  an 
eloquent  passage  from  his  supplementary  argument: 

"  I  honor  England.  The  substance,  and  even  the  forms 
of  the  institutions  of  the  United  States  are  borrowed  from 
the  mother-country.  We  are  what  we  are,  first  of  all,  be- 
cause we  are  of  British  race,  language,  religion,  genius, 
education,  and  character.  I  have  studied  England  at 
home,  in  her  Colonies,  in  her  establishments  beyond  the 
seas,  and,  above  all,  in  her  magnificent  Indian  Empire. 
She  is  rich,  great,  and  powerful  as  a  State,  not,  in  my 
opinion,  because  of  the  subjection  of  her  Ministers  to  the 
scrupulous  and  daily  criticism  of  the  House  of  Commons, 
but  in  spite  of  it,  as  I  remember  to  have  heard  said  by 
the  late  Lord  Palmerston.  It  is  not  the  strong,  but  rather 
the  weak  side  of  her  Government,  as  one  sees,  moreover, 
in  the  present  controversy.  It  is  not  worth  while,  there- 
fore, to  deny  to  the  Crown  executive  powers  necessary  for 
the  peace  of  the  Kingdom;  nor,  in  the  present  case,  to 
raise  cries  of  arbitrary  power,  in  the  face  of  the  admitted 
omnipotence,  that  is  to  say,  of  the  absolute  despotic 
power  of  Parliament,  whose  real  force  tends  every  day  to 

1  Gen.  Arb.y  vol.  iii,  p.  28. 


OUR  WORK  AT  PARIS  129 

concentrate  itself  more  and  more  in  the  House  of  Com- 
mons alone."  * 

The  second  subdivision  of  the  thirteenth  chapter, 
entitled  "  Questions  of  Jurisdiction,"  was  the  work  of 
Mr.  Davis.  It  treats  of  the  vexed  subject  of  "Na- 
tional," or,  as  preferably  styled  in  England, "  Indi- 
rect "  Claims.  This  portion  of  the  argument  is  clear 
and  forcible.  It  demonstrates  the  soundness  of  the 
position  that  the  Tribunal  were  fully  empowered  by 
the  Treaty  to  entertain  and  pass  upon  claims  of  this 
nature. 

We  had  hardly  begun  in  earnest  to  get  to  work 
upon  the  Argument  when  obstacles  presented  them- 
selves to  our  having  the  printing  in  English  accu- 
rately and  expeditiously  done.  In  order  to  dissipate 
our  fears  lest  the  books  should  not  be  printed* 
bound,  and  ready  for  delivery  upon  the  date  stipu- 
lated, Mr.  Davis  found  it  necessary  to  resort  else- 
where for  help.  He  accordingly  despatched  Mr. 
John  Davis  to  London,  in  search  of  competent 
printers.  That  energetic  young  man  returned 
promptly  and  brought  with  him  a  squad  of  English 
compositors.  The  novel  importation  was  regarded 
by  the  French  printers  with  perfect  good-nature. 
Indeed,  so  far  from  exhibiting  any  displeasure,  they 
met  the  Englishmen  with  demonstrations  of  wel- 
come, cheering  them  as  they  appeared  upon  the 
scene.  Finally,  all  was  ready,  —  the  Argument, 
signed  "  C.  Gushing,  Wm.  M.  Evarts,  M.  R.  Waite," 

1  Gen.  Art.,  vol.  iii,  p.  498. 


130          THE  GENEVA  TRIBUNAL 

was  handed  by  Counsel  to  the  Agent  on  the  10th 
of  June.  With  this  action,  the  work  prosecuted  at 
Paris  came  to  an  end. 

'  The  complete  text  of  the  Argument,  together  with 
an  Appendix,  made  a  volume  of  five  hundred  and 
sixty  pages.  The  elucidation  of  the  several  points  is 
thorough,  and  the  reasoning  direct  and  cogent.  To 
the  lawyer  or  the  publicist  it  remains  a  production 
that  repays  a  careful  study.  It  may  be  pronounced 
in  every  respect  worthy  of  the  great  cause  in  which 
it  aimed  to  illuminate  the  minds  of  the  Arbitrators. 
"This  Argument, "  says  Mr.  Davis,  "has  attracted 
great  attention  throughout  Europe,  and  has  re- 
ceived universal  praise  as  a  masterly  vindication  of 
our  rights." l 

1  Report  to  Mr.  Fish,  21  September,  1872,  Gen.  Arb.,  vol.  iv,  p.  6. 


CHAPTER  V 

THE  PLEADINGS:  CASES  AND  COUNTER-CASES 

HERE  we  may  pause  to  consider  briefly  what  may  be 
styled  the  pleadings  in  this  great  international  law- 
suit. Although  involving  an  issue  of  profound  signi- 
ficance, the  field  of  contention  was  after  all  not  exten- 
sive. If  one  examine  closely  the  Case  and  Counter- 
Case  of  the  respective  parties,  he  will  discover  that 
the  complaint  and  the  defence  are  each  capable  of 
being  brought  within  a  comparatively  narrow  com- 
pass. When  later  we  shall  view  in  detail  the  proceed- 
ings at  Geneva,  and  note  the  persistent  but  unsuc- 
cessful attempts  of  the  Counsel  for  Great  Britain  to 
obtain  leave  for  laying  before  the  Tribunal  still  fur- 
ther argument  than  that  already  filed,  we  shall  observe 
how  far  the  adoption  of  the  Three  Rules  in  the  Treaty 
served  to  simplify  the  issue.  It  will  appear  that  the 
one  point  of  the  greatest  difficulty  to  decide  was  the 
extent  of  the  damages  for  which  England  might 
justly  be  held  responsible.  Little  doubt  could  exist 
as  to  how  the  neutral  Arbitrators  would  deal  with 
the  charge  of  neglect  on  the  part  of  the  Government 
of  Great  Britain,  in  permitting  the  cruisers  to  escape. 
As  that  interesting  writer  and  stout  defender  of  the 
Confederacy,  Captain  Bullock,  puts  it :  — 

"They  [the  neutral  Arbitrators]  perceived,  however, 


132          THE  GENEVA  TRIBUNAL 

that  Great  Britain  had  virtually  confessed  that  she  owed 
both  reparation  and  compensation  to  the  United  States 
by  admitting  that  the  'Alabama  and  other  vessels'  had 
escaped  from  her  jurisdiction,  and  by  expressing  regret 
for  the  injury  they  had  inflicted;  and  it  must  have  ap- 
peared to  them  that  all  previous  contentions  to  the  con- 
trary had  been  abandoned  by  Great  Britain,  and  that 
their  only  course  was  to  judge  between  the  parties  accord- 
ing to  the  conditions  agreed  upon  between  them,  and  to 
keep  the  damages  down  to  a  reasonable  figure."  l 

The  Case  of  the  United  States  of  necessity  had  to 
be  a  story  of  alleged  grievances.  The  American 
people  were  bringing  their  complaint  before  a  body 
of  impartial  listeners.  A  plain,  concise  statement 
was  wanted.  The  narrative  required  a  style  easily 
to  be  understood,  and  such  as  would  interest  and 
hold  the  attention  of  Arbitrators  not  accustomed  to 
speak  the  English  language. 

Fortunately  for  the  United  States,  its  Agent,  as  we 
have  already  observed,  could  think  and  write  with 
unusual  clearness.  Bancroft  Davis's  style  was  both 
easy  and  animated.  His  work  bears  the  mark  of  a 
hand  practised  in  the  best  forms  of  literary  expres- 
sion. One  may  be  permitted  to  doubt  whether  any 
author  of  repute  could  have  produced  a  volume  more 
entertaining  had  he  been  commissioned  by  a  pub- 
lisher to  furnish  a  brief,  historic  account  of  those  oc- 
currences in  the  form  of  a  popular  sketch.  In  a  word, 

1  The  Secret  Service  of  the  Confederate  States  in  Europe  (1884), 
vol.  ii,  p.  393. 


THE  PLEADINGS  133 

the  American  Case  is  an  attractive  book  to  read. 
In  its  handy  shape,  as  printed  at  Leipsic,  one  may 
turn  over  its  pages  to-day,  and  read  them  with  the 
certainty  of  becoming  interested  in  the  lively  narra- 
tive of  the  many  stirring  events  of  which  they  treat. 

The  chief  aim  of  the  Case  is  to  set  forth  the  duties 
which  Great  Britain  as  a  neutral  should  have  ob- 
served towards  the  United  States,  and  to  point  out 
in  what  particulars  she  failed  to  perform  those 
duties.  This  purpose  is  accomplished  by  the  use  of 
plain  terms.  The  opening  chapters  describe  the 
struggle  to  maintain  the  Union,  the  attitude  of  the 
British  Government  towards  the  United  States,  to- 
gether with  the  circumstances  in  which  the  Confed- 
erate cruisers  were  built,  and  were  allowed  to  go  to 
sea.  Lastly,  there  is  a  statement  of  the  claims  made 
because  of  the  destruction  of  vessels  and  their  car- 
goes, because  of  the  losses  of  individuals,  and  the 
expenditures  of  the  Government;  the  loss  in  the 
transfer  of  ships  from  the  American  to  the  British 
flag;  the  enhanced  payments  of  insurance,  and  the 
expenses  consequent  upon  the  prolongation  of  the 
war,  due,  it  was  contended,  to  the  presence  of  these 
cruisers  upon  the  ocean. 

The  Case  encountered,  as  might  have  been  pre- 
dicted, hostile  criticism  from  the  press  of  England, 
—  the  Saturday  Review,  for  instance,  being  specially 
severe  in  its  strictures.1  The  Earl  of  Selborne,  who 

?  Yet  the  Pall  Mall  Gazette  (in  January,  1872)  termed  it  "  That 
exceedingly  clear,  simple,  well-argued  document." 


134  THE  GENEVA  TRIBUNAL 

as  Sir  Roundell  Palmer  conducted  the  defence  at 
Geneva,  writing  after  the  event,  said  of  the  Amer- 
ican Case:  "  Its  tone  was  acrimonious,  totally  want- 
ing in  international  courtesy." *  Captain  Bullock,  of 
whom  it  was  not  to  be  expected  that  he  should  view 
it  with  favor,  alludes  to  "the  peculiar  harshness  of 
tone  and  the  angry  spirit  which  pervades  the  United 
States  Case."  The  latter  writer,  than  whom  no  one 
has  wielded  an  abler  or  more  vigorous  pen  on  behalf 
of  the  Southern  Confederacy,  speaks  of  the  "some- 
what sensational  opening"  of  the  Case,  and  con- 
tinues: — 

"  No  one  can  read  the  Case  of  the  United  States  and  the 
Arguments  in  support  of  it,  without  perceiving  that  the 
chief  object  was  to  prejudice  the  Arbitrators  by  dispar- 
aging the  institutions  and  laws  of  Great  Britain,  and  by 
impugning  the  motives  of  the  British  Government,  and 
seeking  to  cast  reproach  upon  the  particular  Cabinet 
Minister  whose  office  it  was  to  administer  the  foreign  af- 
fairs of  the  country.  .  .  .  Earl  Russell  is  arraigned  be- 
fore the  Court  of  Arbitration  as  a  Minister  who  '  evinced 
a  consistent  course  of  partiality  towards  the  insurgents/ 
and  he  is  charged  with  specific  acts  of  delay  in  acting 
upon  the  information  furnished  him  by  the  United  States 
Minister,  which,  it  is  insinuated,  arose  from  a  friendly 
feeling  towards  the  Confederate  States."  2 

Such  criticism  as  this  is  not  to  be  wondered  at. 
The  Case  reflected  the  views  of  the  lovers  of  the 

1  Memorials,  vol.  i,  p.  229. 

1  The  Secret  Service  of  the  Confederate  States  in  Europe,  vol.  il, 
pp.  301-302. 


THE  PLEADINGS  135 

Union,  —  views  colored  perhaps  by  prejudice,  but 
honestly  and  inflexibly  entertained.  It  brought  to 
the  author  words  of  hearty  and  grateful  commenda- 
tion from  his  countrymen  in  every  walk  of  life,  since 
it  had  stated  the  cause  of  the  people  of  the  United 
States  precisely  as  they  would  have  had  it  stated. 
The  language  employed  is  simple  and  straightfor- 
ward. The  tone  is  neither  weak  nor  conciliatory. 
The  charges  laid  are  expressed  in  forcible  terms;  yet 
the  Case,  viewed  as  a  complaint  brought  before 
a  tribunal  of  justice,  cannot  fairly  be  said  to  be  lack- 
ing in  courtesy. 

The  charge  has  been  made  of  late  years  to  the  effect 
that  a  tactical  blunder  was  committed  in  virtually 
accusing  the  British  Government  with  having  been 
unfriendly  to  the  United  States. 

Says  Captain  Bullock:  — 

"  The  United  States  appeared  before  the  Tribunal  with 
all  the  advantages  of  a  diplomatic  triumph  in  their  favour, 
and  could  also  point  to  such  a  plain  confession  of  default 
on  the  part  of  their  opponents,  as  to  make  it  well-nigh 
certain  that  the  judgment  would  in  the  main  be  favourable 
to  them.  It  is,  therefore,  greatly  to  be  regretted  that 
their  '  Case '  was  not  drawn  up  in  the  friendly  spirit  which 
appears  to  have  possessed  the  Joint  High  Commissioners 
in  their  deliberations;  on  the  contrary,  it  seems  to  have 
been  written  on  the  model  of  Mr.  Seward's  most  acri- 
monious despatches,  bears  evidence  of  pique  and  irrita- 
tion, which  is  strikingly  out  of  harmony  with  the  charac- 
ter of  the  proceedings,  and  manifests  the  purpose  through- 
out to  obtain  a  specific  present  advantage,  and  to  secure 


136          THE  GENEVA  TRIBUNAL 

a  pecuniary  profit,  rather  than  the  desire  to  found  an 
honourable  precedent  for  the  settlement  of  future  inter- 
national disputes,  and  to  establish  new  rules  for  the  guid- 
ance of  neutrals  which  both  England  and  America  could 
recommend  to  other  Powers."  l 

That  the  Case  clearly  manifests  the  purpose  of 
securing  a  pecuniary  profit,  is  not  to  be  denied.  By 
the  terms  of  the  Treaty  the  Tribunal  was  empowered 
to  award  a  sum  in  gross  to  be  paid  by  Great  Britain 
to  the  United  States  "for  all  the  claims  referred  to 
it."  Why  should  not  the  Case  have  manifested  the 
purpose  of  obtaining  a  present  specific  advantage? 
Individual  losers  (and  they  were  many  in  number, 
as  well  as  an  influential  body  of  citizens)  would  have 
had  reason  to  complain  loudly  of  their  Government, 
had  the  United  States,  in  its  Case,  pressed  the 
claims  in  a  lukewarm  manner.  Great  Britain,  when 
asserting  her  rights  under  the  Article  of  the  Treaty  in 
respect  to  the  Fisheries,  was  not  at  all  modest  in  her 
demands;  in  fact,  by  stoutly  insisting  on  her  rights 
(as  she  viewed  them)  she  secured  an  award  far  be- 
yond a  reasonable  estimate  of  what  could  have  been 
actually  due  to  her. 

"A  friendly  spirit,"  such  as  Bullock  advises,  would 
have  been  entirely  out  of  keeping;  for  he  means 
thereby  an  easy,  conciliatory,  half-apologetic  way 
of  proffering  our  claims.  It  is  because  they  take  a 
superficial  view  of  the  situation  that  the  criticism 

1  The  Secret  Service  of  the  Confederate  States  in  Europe,  vol.  li, 
p.  393. 


THE  PLEADINGS  137 

has  been  heard  in  some  quarters  from  a  few  Ameri- 
can writers  to  the  effect  that  Mr.  Davis  (which 
means  Mr.  Fish)  made  a  mistake  in  demanding 
reparation  in  the  terms  of  the  Case.  The  document 
had  to  reflect  American  public  opinion,  and  on  that 
score  there  surely  was  no  uncertainty.  The  country 
(inflamed,  it  is  true,  by  Sumner's  speech,  and  there- 
fore unduly  insistent)  meant  that  the  bill  presented 
for  damages  should  go  to  the  farthest  extent.  Had 
that  speech  never  been  made  public,  it  is  not  un- 
likely that  the  Treaty  of  Washington  would  have 
read  differently;  and  no  great  trouble  would  have 
been  met  in  dealing  with  the  question  of  the  charac- 
ter of  the  demand  for  damages. 

The  truth  is,  we  stood  up  for  our  rights  at  Geneva 
in  manly  fashion,  and  England  respected  us  — 
secretly  liked  us, —  all  the  better  for  it.1 

1  In  view  of  the  fact  that  other  cases  of  International  arbitra- 
tion will  arise  in  future,  it  is  well  not  to  dismiss  this  branch  of  the 
subject  without  a  full  apprehension  of  the  actual  situation  of  the 
parties  who  were  to  meet  at  Geneva,  and  appeal  to  an  impartial 
Tribunal  to  decide  which  had  been  in  the  wrong,  and  to  what  extent 
there  should  be  reparation.  Two  great  Powers  consenting  to  sub- 
mit their  differences  to  arbitration  instead  of  going  to  war,  is  indeed 
a  noble  spectacle.  Such  a  proceeding  is  likely  to  excite  a  degree 
of  sentiment  in  the  beholder.  It  is  comparatively  easy  for  him, 
charged  as  he  is  with  no  responsibility,  to  assume  that  a  "friendly 
spirit "  should  at  every  stage  animate  the  conduct  of  affairs.  This 
is  all  very  well,  but  human  nature  asserts  itself,  and  altruistic 
methods  are  not  as  yet  adopted  in  the  settlement  of  disputes  that 
have  grown  out  of  alleged  wrongs.  A  single  word  of  explanation 
ought,  to  satisfy  the  critic  that,  taking  the  situation  as  it  actually 
existed  in  1871,  the  management  by  our  Secretary  of  State  of  the 


138  THE  GENEVA  TRIBUNAL 

The  critic  of  to-day,  in  order  to  pass  judgment 
upon  the  attitude  toward  Great  Britain  taken  at 
Geneva  by  the  Agent  and  Counsel  of  the  United 
States,  should  first  be  sure  that  he  apprehends  the 
nature  of  the  feeling  that  possessed  the  American 
people  at  that  period  with  respect  to  the  Alabama 
Claims  difficulty.  Let  him  bear  in  mind  that  a  keen 
sense  dominated  their  minds  of  what  they  (rightfully 
or  wrongfully)  conceived  to  have  been  injuries  suf- 
fered at  the  hands  of  the  British  Government.  He 
should  also  fitly  estimate  the  effect  wrought  upon 
the  loyal  North  by  the  actual  conduct  of  Great 
Britain  during  the  terrible  strain  of  a  great  war.  It 
is  by  no  means  easy  for  you  or  for  me  of  to-day  to 
carry  ourselves  back  into  the  atmosphere  of  that 
momentous  struggle. 

But  now  that  the  storm  of  passion  has  ceased,  we 

entire  subject  of  the  Alabama  Claims  was  both  wise  and  prudent. 
The  more  it  is  studied,  the  more  grateful  does  our  feeling  become 
towards  Hamilton  Fish  and  his  efficient  lieutenant,  Bancroft  Davis. 

We  were  obliged  to  speak  of  the  attitude  of  those  who  during  the 
war  were  in  power  in  England.  We  had  to  tell  what  seemed  to  us  to 
be  the  plain  truth.  Nobody  was  going  to  be  convinced  that  England 
had  been  heartily  in  favor  of  our  putting  down  the  rebellion.  Why 
ignore  what  constituted  so  important  a  factor  in  the  events  of  that 
trying  period?  Lord  Westbury,  in  1868,  said  in  the  House  of  Lords 
that  "the  animus  with  which  the  neutral  Powers  acted  was  the  only 
true  criterion  .  .  .  the  question  was  whether  from  beginning  to  end 
it  [the  neutral  Power]  had  acted  with  sincerity,  and  with  a  real 
desire  to  promote  and  preserve  a  spirit  of  neutrality."  Gen.  Arb., 
vol.  i,  p.  45. 

This  is  sensible  talk.  The  author  of  the  Case  followed  the  same 
lines. 


THE  PLEADINGS  139 

with  fuller  knowledge  of  what  happened  upon  both 
sides  of  the  water,  and  a  little  insight  into  the  real 
motives  of  individuals,  can  look  calmly  at  one  event 
after  another  of  that  historic  period.  As  a  result  of 
such  examination,  it  may  frankly  be  admitted  that 
strong  natures  in  each  country  were  in  some  degree 
misled,  in  respect  to  the  springs  of  conduct  of  their 
brethren  of  the  other  country.  The  American  and 
the  Englishman  can  now  sit  down  and  quietly  com- 
pare notes.  It  still  remains  true  that  the  intensity 
of  the  indignation  which  certain  acts  and  omissions 
of  the  British  Government  in  that  day  provoked 
throughout  the  Union,  is  a  fact  too  grave  to  be 
ignored. 

While  preparing  the  Case  it  became  needful  to 
speak  outright.  The  heading  of  the  opening  chapter 
is  thus  worded:  "  The  Unfriendly  Course  pursued  by 
Great  Britain  toward  the  United  States  from  the 
outbreak  to  the  close  of  the  Insurrection."  The 
animus  controlling  the  British  Government,  mani- 
fested as  it  had  been  in  the  several  flagrant  instances 
and  from  time  to  time  freely  condemned  by  more 
than  one  participant  in  debate  upon  American  af- 
fairs in  the  House  of  Commons,  is  laid  hold  upon 
as  furnishing  the  keynote  to  an  introductory  state- 
ment of  the  demand  for  redress.  Fortunate  indeed 
was  it  that  the  British  Commissioners  of  the  Treaty 
of  Washington  had  in  a  friendly  spirit  expressed 
regret  for  the  escape  of  the  vessels  from  British 
ports,  and  for  the  depredations  they  had  committed. 


140  THE  GENEVA  TRIBUNAL 

This  amende,  as  it  was  intended  that  it  should, 
went  a  long  way  to  allay  the  feeling  of  resentment 
and  anger  theretofore  so  profoundly  cherished  by 
the  people  of  the  United  States.  Still,  the  business 
of  prosecuting  the  claims  of  the  United  States 
against  Great  Britain  could  not  be  transacted  along 
sentimental  lines.  Public  opinion,  with  marked 
unanimity  throughout  the  Union,  demanded  that 
the  complaint  should  be  set  out  firmly,  and  in  the 
tone  of  an  injured  suitor  asking  reparation.  The 
motives  with  which  the  Government  of  Great  Brit- 
ain had  acted  could  but  assume,  therefore,  ma- 
terial import,  to  the  end  that  the  Arbitrators  might 
fully  understand  the  nature  of  the  grievances  for 
which  the  United  States  was  preferring  its  com- 
plaint. 

This  country  was  bringing  an  action  against 
Great  Britain  upon  the  charge  of  neglect  of  duty. 
While  the  proceedings  were  to  be  conducted  before 
a  loftier  tribunal  than  an  ordinary  court  of  justice, 
they  necessarily  retained  some  of  the  features  of  a 
lawsuit,  —  English  or  American.  In  respect  both  to 
the  injuries  alleged  to  have  been  inflicted,  and  the 
character  of  the  damages  to  be  recovered,  the  Case 
bore  resemblance  to  a  common  law  declaration  in 
tort. 

Of  course,  in  an  action  for  redress,  the  motive  with 
which  a  tortious  act  has  been  done  necessarily  plays 
an  important  part.  It  would  have  been  unpar- 
donable had  the  American  Case  exhibited  signs  of 


THE  PLEADINGS  141 

resentment,  or  descended  to  a  display  of  discourtesy. 
A  rigid  scrutiny  fails  to  discover  therein  either 
words  or  tone  violative  of  the  canons  of  good  taste. 
Strong  language,  to  be  sure,  is  used,  but  always 
within  becoming  limits.  Plain  Anglo-Saxon  is  what 
a  plaintiff  employs  when  he  complains  of  what  the 
defendant  has  been  doing.  Here  the  charge  is  in- 
sisted upon  of  a  conscious  unfriendliness.  Serious 
as  that  charge  is,  it  appears  to  have  been  put  for- 
ward only  after  long  and  serious  deliberation. 

The  Case  complains  that,  upon  the  outbreak  of 
the  insurrection,  and  before  a  knowledge  of  the 
facts,  as  they  had  actually  occurred,  and  of  the 
policy  that  the  Government  of  the  United  States 
meant  to  adopt  in  regard  to  them,  could  have 
reached  the  British  Ministry,  —  and  indeed,  only  a 
few  hours  before  the  new  American  Envoy  had 
landed  hi  England, — the  Ministry  of  the  Liberal 
party,  who  were  thought  upon  this  side  of  the 
Atlantic  to  be  kindly  disposed  to  the  preservation 
of  the  Union,  issued  with  unbecoming  haste  the 
Queen's  Proclamation  of  Neutrality.  This  hurried 
action  recognized  the  insurgents  as  belligerents, 
thus  affording  aid  and  comfort  to  the  Confederacy, 
and  in  a  corresponding  degree  depressing  the  hopes 
of  the  loyal  North. 

It  is  a  historic  fact  that  the  hasty  exhibition  by 
the  British  Government  of  their  readiness  to  help 
on  the  cause  of  the  South  was  seen,  understood,  and 
profoundly  regretted  by  every  friend  of  the  Union. 


142  THE  GENEVA  TRIBUNAL 

That  the  right  to  recognize  the  Confederates  as  bel- 
ligerents existed  as  a  sovereign  right  of  Great  Brit- 
ain, nobody  disputed.  But  the  right  was  exercised 
at  a  tune  and  in  a  manner  that  wounded  the  United 
States.  The  American  people  felt  that  they  were 
justly  aggrieved.  The  indignation  kindled  on  this 
side  of  the  Atlantic  was  largely  due  to  a  belief  that, 
had  Lord  John  Russell  and  his  associates  really  en- 
tertained a  friendly  feeling  for  the  cause  of  the 
Union,  they  would  have  delayed  the  proclamation, 
at  least  until  after  the  arrival  of  Mr.  Charles  Francis 
Adams;  and  moreover,  that,  had  they  so  chosen, 
they  could  easily  have  found  means  whereby  to 
prevent  the  fitting-out  of  vessels  like  the  Florida  and 
the  Alabama,  to  prey  upon  the  commerce  of  a  nation 
with  which  their  country  was  at  peace,  and  drive  it 
from  the  ocean. 

It  does  not  escape  observation  that  occasionally 
a  writer  is  tempted  to  advance  an  expression  of  his 
own  unsupported  opinion,  under  the  guise  of  saying 
that  "an  impartial  reader"  will  conclude  thus  and 
so.  Yet  I  have  no  hesitation  in  affirming  that  any 
person  who  to-day,  with  an  unbiased  mind,1,  weighs 
the  recorded  evidence  upon  the  point  of  the  un- 
friendliness of  Great  Britain,  will  thoroughly  sat- 
isfy himself  that  the  charge  in  the  Case  is  amply  sus- 
tained. 

The  British  Government  refused  hi  their  Counter- 
Case  to  enter  upon  a  discussion  of  the  charge  of  hos- 
tile motives  and  insincere  neutrality,  it  being  "in- 


THE  PLEADINGS  143 

consistent  with  the  self-respect  which  every  Govern- 
ment is  bound  to  feel."  * 

Sir  Alexander  Cockburn,  in  his  dissenting  opinion, 
stigmatizes  the  action  of  the  Agent  and  Counsel  of 
the  United  States  as  taking  advantage  "to  revive 
with  acrimonious  bitterness  every  angry  recollection 
of  the  past,  and,  as  it  would  seem,  to  pour  forth  the 
pent-up  venom  of  national  and  personal  hate."  2 

The  reader  who  would  pursue  the  subject  further 
will  be  repaid  by  consulting  the  articles  contributed 
to  the  London  Times,  in  1865,  by  "Historicus" 
(Vernon  Harcourt,  afterwards  Sir  William  Vernon 
Harcourt)  upon  the  topic  of  "  The  Hasty  Recogni- 
tion in  the  Queen's  Proclamation  of  May  13,  1861," 
and  the  rejoinder  to  them,  in  1868,  by  Mr.  George 
Bemis,  of  Boston,  in  a  communication  to  the  Bos- 

i    l  Gen.  Arb.,  vol.  il,  p.  203. 

8  Ibid.,  vol.  iv,  p.  311.  Per  contra,  the  dignified  and  calm  expres- 
sion of  views  by  Count  Sclopis,  the  President  of  the  Tribunal,  as  to 
the  conduct  of  the  British  Ministry  in  shutting  their  eyes  to  what  waa 
going  on  in  aid  of  the  Confederate  cause,  lends  no  countenance  to 
the  theory  of  an  existing  excuse  for  this  violent  outbreak  on  the  part 
of  the  dissenting  member.  Ibid.,  vol.  iv,  p.  62.  The  Annual  Register  for 
1872  (p.  110)  sensibly  observes  of  Sir  Alexander  Cockburn's  "Rea- 
sons " :  "To  an  Englishman  with  an  Englishman's  prepossessions,  its 
vigorous  language  may  naturally  have  appeared  irresistible.  It  does 
not  follow  that  it  would  commend  itself  equally  to  the  judgment  even 
of  impartial  foreigners.  His  energetic  disclaimer  of  unfavorable  sen- 
timents on  the  part  of  England  towards  the  North  in  the  great 
struggle  could  meet  among  them  with  little  response;  and  their 
inference  that  her  conduct  towards  the  North  in  the  matters  before 
the  Tribunal  had  been  influenced  by  such  sentiments  could  not  be 
shaken  by  simply  denying  their  existence." 


144  THE  GENEVA  TRIBUNAL 

ton  Daily  Advertiser,  subsequently  enlarged  and 
printed  in  pamphlet  form.  Mr.  Bemis,  it  may  be  ex- 
plained, printed  three  other  pamphlets,  relating  to 
the  Alabama  Claims,  all  of  them  timely  and  valu- 
able. 

"jHistoricus  "  asserts  that  it  was  a  matter,  not  of 
choice,  but  of  necessity,  that  the  proclamation  should 
issue  as  it  did.  He  finds  such  necessity  in  the  procla- 
mation of  President  Lincoln,  announcing  the  block- 
ade of  Southern  ports.  This  position  he  maintains 
with  vigor,  and  throughout  the  article  [he  proves 
himself  to  be  a  learned  writer,  familiar  in  all  respects 
with  the  subject  in  hand. 

Mr.  Bemis  in  his  reply  is  not  less  trenchant,  or 
apparently  less  sure  of  his  ground.  He  argues  that 
(1)  the  position  now  (1865,  as  contrasted  with  1861) 
taken,  that  the  American  proclamation  necessitated 
the  Queen's  proclamation  of  neutrality,  was  an  after- 
thought; (2)  President  Lincoln's  proclamation  of 
blockade  was  not  the  occasion  of  the  recognition 
of  the  Confederate  belligerency,  because,  supposing 
the  former  to  have  been  officially  communicated,  it 
was  not  known  to  have  been  in  force  at  the  date  of 
the  latter;  furthermore,  if  in  force,  it  was  not  such  an 
act  as  ought  to  have  been  internationally  treated  as 
an  act  of  war. 

The  contentions  of  the  American  writer  are  ad- 
vanced in  bold  and  aggressive  terms.  His  treatment 
of  the  question  at  issue  is  skilful;  his  argument  co- 
gent, and  his  conclusions  apparently  unanswerable. 


THE  PLEADINGS  145 

At  any  rate,  the  reasoning  on  each  side  will  be  rel- 
ished by  one  who  likes  to  witness  a  debate  carried 
on  between  men  of  brains. 

The  following  extract  comprises  the  chief  (if  not 
the  only)  part  of  his  comment  that  can  be  described 
as  partaking  of  the  nature  of  personal  criticism.  It 
is  reproduced  here  from  no  purpose  of  keeping  alive 
a  spark  of  unkind  sentiment  toward  what  is  still  the 
"mother  country,"  but  because  it  illustrates  the 
pitch  of  recrimination  which  a  discussion  between 
champions  of  the  two  nations  was  almost  sure  to 
reach  at  that  exciting  period. 

"  Historicus  is  attempting,"  says  the  American  writer, 
"  to  soothe  our '  irritation '  at  the  hasty  recognition  of  rebel 
belligerency,  —  a  matter  which,  considering  how  hardly 
it  has  pressed  upon  us  in  vital  particulars  for  the  last  four 
years,  I  think  the  world  must  give  us  credit  for  having 
borne  with  at  least  tolerable  equanimity,  —  with  the  fol- 
lowing international  blister. 

"  Says  Historicus :  '  I  am  too  well  aware  of  the  unhappy 
irritation  which  exists  on  the  subject  [of  recognition  of  the 
rebels]  in  the  public  mind  of  America  not  to  desire  to  offer 
the  smallest  contribution  toward  its  removal.  .  .  .  Un- 
happily, there  are  too  many  persons  on  both  sides  of  the 
Atlantic  who  indulge  themselves  in  the  wicked  and  dan- 
gerous amusement  of  inflaming  passions  which  they  ought 
to  soothe.  .  .  .  My  ambition  is  of  quite  another  sort.  I 
desire,  by  a  recourse  to  those  fixed  and  ascertained  prin- 
ciples of  law  and  maxims  of  justice  which  are  enshrined 
in  the  records  of  nations,  and  the  conscience  of  mankind, 
as  the  perpetual  arbiters  of  truth  and  of  peace,  to  remon- 


146          THE  GENEVA  TRIBUNAL 

strate  against  an  unreasonable  anger  and  an  unjust  ani- 
mosity. Surely,  sir,  these  evil  tongues,  which  are  like 
a  sharp  sword,  may  rest  sated  with  the  blood  which  they 
have  helped  to  [make?]  flow.  Sat  prata  biberunt.' 

"  All  of  which  I  venture  to  call  the  quintessence  of  cant; 
only  equalled  by  Lord  Russell's  declaring  to  his  envoy  at 
the  American  seat  of  Government,  Lord  Lyons,  on  the 
6th  day  of  May,  1861,  how  deeply  he  deplored  the  disrup- 
tion of  the  American  Republic,  and  that l  no  expression  of 
regret  you  may  employ  at  the  present  deplorable  state 
of  affairs  will  too  strongly  declare  the  feelings  with  which 
Her  Majesty's  Government  contemplate  all  the  evils 
which  cannot  fail  to  result  from  it ';  and  yet  leading  off  to 
the  world  (the  tidings  of  the  attack  on  Sumter  being  then 
less  than  ten  days  old)  with  the  announcement  that '  the 
late  Union'  'has  separated  into  distinct  confederacies'; 
and  '  the  Government  of  the  southern  portion  (having) 
duly  constituted  itself,'  Her  Majesty's  Government, '  feel 
that  they  cannot  question  the  right  of  the  Southern  States 
to  claim  to  be  recognized  as  a  belligerent,  and,  as  such, 
invested  with  all  the  rights  and  prerogatives  of  a  belliger- 
ent '  —  and  '  Her  Majesty's  Government  do  not  wish  you  to 
make  any  mystery  of  that  [this]  view! '  That  is,  '  the  civil 
war/  as  he  calls  it,  having  so  far  lasted  ten  days,  he 
instructs  his  envoy  '  to  make  no  mystery '  of  telling  the 
Government  to  which  he  is  accredited  that  its  supremacy  has 
gone  to  pieces,  and  that  he  shall  henceforth  consider  himself 
as  Minister  plenipotentiary  to  '  the  late  Union '  ! 

"  Great  affection  that  for  the  ally  '  with  whom  Her 
Majesty's  Government  have  at  all  times  sought  to  culti- 
vate the  most  friendly  relations ' !  "  l 

1  Alabama  Claims,  vol.  iv,  United  States'  Documents,  Corre- 
spondence and  Evidence,  pp.  29-30. 


THE  PLEADINGS  147 

It  is  eminently  proper,  however,  that  an  addi- 
tional extract  be  appended  as  proof  that  this  writer 
understands  likewise  how  to  use  the  language  of 
compliment.  Upon  a  later  page,  after  expressing 
regret  that  Mr.  Harcourt  should  throw  himself  open 
to  a  suspicion  of  inadequate  accuracy,  Mr.  Bemis 
proceeds: — 

"  For  one  I  must  own  to  deriving  great  personal  pleas- 
ure as  well  as  profit,  from  his  publications;  and  I  believe 
I  speak  no  more  than  the  truth  when  I  add  that  I  think 
the  United  States  Government  and  people  are  under  great 
obligations  to  him  for  his  advocacy  of  just  and  high- 
minded  measures  of  international  dealing  towards  this 
country  at  various  periods  of  the  late  civil  struggle,  — 
greater,  perhaps,  than  to  almost  any  European  writer 
who  has  undertaken  to  discuss  our  foreign  relations."  l 

This  acknowledgment  is  followed  by  a  few  kind 
remarks  in  behalf  of  Earl  Russell,  gratefully  refer- 
ring to  "his  important  and  substantial  friendliness 
toward  the  United  States  in  more  than  one  particu- 
lar"; with  a  happily  worded  expression  of  a  sense  of 
obligation  for  the  kind  treatment  on  Earl  Russell's 
part  of  Mr.  Adams,  our  Minister  "  at  the  British 
Court  throughout  the  dark  days  of  our  national  dis- 
credit with  Englishmen  generally.  Nor  will  Ameri- 
cans soon  forget  his  lordship's  magnanimous  and 
candid  confession  at  the  Garrison  banquet  of  the 
wrong  he  had  done  President  Lincoln  in  questioning 
the  sincerity  of  his  motives  in  issuing  the  Emancipa- 

1  Alabama  Claims,  vol.  iv,  p.  45. 


148          THE  GENEVA  TRIBUNAL 

tion  Proclamation.  Such  a  confession  almost  marks 
a  new  era  in  the  practice  of  professed  diplomatists." 
These  words  were  uttered  in  1868.1 

It  was  the  clear,  forcible  presentation  of  the 
claims  of  American  shipowners  and  of  American 
merchants  hi  the  Case  that  won  for  the  United 
States  the  triumph  at  Geneva.2 

1  George  Bemis  (1816-1878)  was  the  second  scholar  In  his  class 
(1835)  at  Harvard.  He  practised  law  for  a  while  with  marked  success 
at  Boston,  but  his  health  failing  he  went  abroad  for  a  stay  of  con- 
siderable length.  He  thereupon  turned  his  attention  to  the  study  of 
public  law.  A  memoir  of  Mr.  Bemis  prepared  by  Judge  Ebenezer 
Rockwood  Hoar  (one  of  the  American  Commissioners  of  the  Treaty 
of  Washington)  will  be  found  in  the  Proceedings  of  the  Massachu- 
setts Historical  Society  for  1878  (pp.  112-116).  Judge  Hoar  says 
of  him  that  "He  contributed  numerous  articles  to  newspapers,  and 
exposed  unfounded  pretences  of  the  British  Government  with  a 
thoroughness  of  research  and  closeness  of  reasoning  which  could 
hardly  have  been  surpassed."  (p.  114.) 

Mr.  Bemis,  who  died  at  Nice,  France,  5  January,  1878,  left 
$50,000  (subject  to  a  life  estate)  to  Harvard  College  to  found  a  pro- 
fessorship of  Public  or  International  Law,  which  became  available 
in  1892.  In  his  will  he  expresses  a  "hope  that  the  bequest  will  hi 
some  degree  aid  the  promotion  of  the  science  of  public  law  in  the 
United  States,  particularly  on  the  part  of  my  brother  lawyers,  who 
I  have  thought  have  hardly  been  alert  enough  in  coming  to  the  aid 
of  the  National  Government  on  the  great  questions  of  belligerent 
and  neutral  rights  which  have  of  late  years  so  much  exercised  our 
country  and  England.  May  it  be  the  continuing  preeminence  of 
my  country  to  know  and  practice  a  just  and  Christian  neutrality, 
while  the  other  nations  are  cultivating  the  arts  and  prerogatives  of 
war."  History  of  the  Harvard  Law  School  (1908),  vol.  ii,  p.  408. 

*  Two  pieces  of  testimony  may  be  adduced  in  proof  of  this  asser- 
tion, supplied  from  sources  worthy  of  the  highest  credit. 

After  the  Lord  Chief  Justice  had  returned  from  the  first  meeting 


THE  PLEADINGS  149 

The  British  Case  was  the  work  of  Mountague 
Bernard,  of  Oxford  (who,  it  will  be  recalled,  was 
one  of  the  Joint  High  Commissioners  to  frame  the 
Treaty),  assisted  by  Lord  Tenterden,  with  Sir 
Roundell  Palmer  superintending  and  taking  part. 
It  is  composed  in  a  finished  style,  at  once  lucid  and 
dignified.  "Its  tone/'  says  Lord  Selborne  (Sir 
Roundell  Palmer),  "was  studiously  respectful  toward 
the  United  States;  no  pains  were  spared  to  avoid  the 
use  of  any  language  which  could  wound  the  suscep- 
tibilities, or  offend  the  high  spirit  of  a  generous 
nation."  *  The  positions  taken  are  defended  with 
ardor,  and  much  ability  and  address  are  shown  in 
the  line  of  argument  presented.  Probably  it  never 

of  the  Arbitrators  at  Geneva,  in  December,  1871,  he  chanced  to  be 
a  guest  at  a  dinner-party,  in  London,  where  were  present  Disraeli, 
and  other  eminent  leaders  of  State.  My  informant  thinks  (though 
not  positive)  that  it  was  at  Earl  Stanhope's.  An  American  gentleman 
happened  to  be  of  the  guests.  This  gentleman  repeated  to  my  in- 
formant a  remark  that  he  heard  fall  from  the  lips  of  Sir  Alexander 
Cockburn.  That  remark  was:  "The  American  Case  is  unanswer- 
able." 

The  second  witness  to  be  called  to  the  stand  is  David  Dudley 
Field,  an  eminent  lawyer  of  New  York  City,  who  had  particularly 
interested  himself  in  the  details  of  what  had  taken  place  at  Geneva. 
Chancing  to  be  in  Turin,  not  long  after  the  Tribunal  had  adjourned, 
he  called  upon  Count  Sclopis  to  pay  his  respects.  After  a  pro- 
tracted conversation  upon  the  topic  of  the  memorable  event  with 
which  the  name  of  the  Italian  jurist  and  statesman  will  ever  be 
associated,  Mr.  Field  felt  emboldened  to  say:  "Now,  pray  tell  me 
who  was  it  that  gained  the  victory  for  the  United  States  ?  "  "It  was 
Mr.  Davis  —  the  author  of  the  American  Case,"  was  the  reply. 

1  Memorials,  etc.,  vol.  i,  p.  229. 


150          THE  GENEVA  TRIBUNAL 

occurred  to  the  American^  representatives  that  their 
opponents  were  at  pains  to  refrain  from  wound- 
ing the  susceptibilities  of  the  United  States.  They 
took  it  for  granted  that  Great  Britain  was  doing  hi 
her  own  way  the  best  she  could  to  make  out  a  de- 
fence. 

The  British  Case  undertook  to  prove  that  the 
United  States  were  not  particularly  diligent  in  per- 
forming their  duties  as  a  neutral  towards  Spain, 
Portugal,  and  other  powers.  It  took  care  to  state 
that  this  averment  was  introduced  with  no  intention 
of  casting  any  reproach  upon  the  Government  or 
people  of  the  United  States.1  This  action  is  met  by 
our  stating  in  reply  that  the  remarks  were 

"apparently  introduced  for  the  purpose  of  inducing  the 
Arbitrators  to  assume  that  the  United  States,  at  some  or 
all  of  those  times,  did  fail  to  use  the  diligence  for  the 
repression  of  hostile  expeditions  from  their  shores  which 
ought  to  have  been  exercised,  and  which  is  required  by 
the  Rules  of  the  Treaty  of  Washington.  The  United  States 
would  regard  such  an  imputation  as  a  reproach,  however 
intended  by  its  authors."  2 

The  Counter-Case  then  asks  attention  to  evidence 
which  will  show  that  Her  Majesty's  Government 
has  been  misinformed.  All  this  is  stated,  as  it  should 
have  been,  in  a  quiet,  dignified  style. 

The  praise  bestowed  by  Lord  Selborne  upon  the 
authors  of  the  Case  of  Great  Britain  because  of  the 

1  Gen.  Arb.,  vol.  i,  p.  243. 
*  Ibid.,  pp.  433-434. 


THE  PLEADINGS  151 

consideration  displayed  by  them  for  the  feelings  of 
the  opposite  party,  is  evidently  designed  to  lend 
emphasis  to  the  observation  that  immediately  fol- 
lows :  "  In  all  these  respects,"  says  the  Counsel  for  the 
defence  at  Geneva,  "  the  American  Case  was  in  the 
most  marked  contrast  with  our  own."  Of  criticism 
such  as  this,  it  is  to  be  said  that  much  depends  upon 
the  point  of  view  of  the  writer.  Lord  Selborne  may 
be  pardoned  for  declining  to  put  the  American  Case 
upon  so  high  a  plane  as  that  which  a  handiwork 
partly  his  own  occupies  in  his  estimation.  Moreover, 
the  British  Case  had  no  occasion  to  be  aggressive. 
Great  Britain  came  to  Geneva  to  explain  and  de- 
fend, —  not  to  lodge  an  accusation.  Extenuation 
can  best  hope  to  be  listened  to  where  moderate  and 
gentle  terms  are  used  to  set  it  forth. 

As  we  have  just  seen,  however,  Great  Britain, 
with  all  of  her  concern  for  avoiding  unpleasant  re- 
marks, does  not  hesitate  to  resort  to  the  tu  quoque 
argument — though,  as  it  appears,  not  very  success- 
fully. The  truth  is,  both  countries  put  forth  strong 
men  to  speak  strong  words.  As  for  courtesy,  good 
taste,  friendly  consideration,  and  sentiment  gener- 
ally, it  is  enough  to  say  that  the  pleadings  and  the 
argument  were  conducted  by  gentlemen.  Both  sides 
went  to  the  contest  to 

"  do  as  adversaries  do  in  law  —  ... 
Strive  mightily,  but  eat  and  drink  as  friends." 

No  really  discourteous  expression,  so  far  as  I  am 
aware,  found  its  way  into  these  papers,  although 


152          THE  GENEVA  TRIBUNAL 

they  deal  with  controversial  points,  in  respect  to 
which  an  intense  national  feeling  had  continuously 
manifested  itself.  Lord  Selborne,  we  must  bear  in 
mind,  is  writing  a  book  of  personal  reminiscences 
after  proceedings  had  ended  wherein  his  client  had 
been  cast  in  damages.  A  pure-minded  man,  of  the 
highest  sense  of  honor,  Sir  Roundell  Palmer  knew 
what  it  was  to  adhere  stubbornly  to  an  opinion.  An- 
other one  of  the  Geneva  Counsel  wrote  a  book  also. 
Caleb  Gushing,  as  soon  as  he  got  back  to  Washing- 
ton, dum  fervet  opus,  dashed  off  certain  remarkable 
chapters  entitled  "The  Treaty  of  Washington." 
While  there  is  much  in  Cushing's  pages  that  is  ex- 
pressed in  severe  and  almost  intemperate  terms,  the 
author  tells  not  a  little  plain  truth,  especially  in 
what  he  has  to  observe  of  the  behavior  of  Sir  Alex- 
ander Cockburn. 

Of  this  book  something  will  be  said  later  on.  For 
the  present,  bearing  hi  mind  what  Lord  Selborne  has 
declared  of  the  care  with  which  the  British  Case 
sought  to  avoid  offending  "  the  high  spirit  of  a  gen- 
erous nation,"  the  reader  may  like  to  see  how  Mr. 
Gushing  deals,  for  instance,  with  the  charge  in  the 
British  Case  of  the  neglectful  way  in  which  the 
United  States  once  treated  the  rights  of  Spain  and 
Portugal.  That  spirited  writer  declares :  — 

"  Instead  of  defending  its  own  conduct  in  the  matter  at 
issue,  the  British  Government  travels  out  of  the  record  to 
find  fault  with  the  conduct  of  the  United  States  at  other 
times,  and  with  respect  to  other  nations.  It  presumes  to 


THE  PLEADINGS  153 

take  upon  itself  the  function  of  personating  Spain,  Port- 
ugal, Nicaragua,  and  to  drag  before  the  Tribunal  at 
Geneva  controversies  between  us  and  other  States,  with 
which  that  Tribunal  had  no  possible  concern,  —  which  it 
could  not  pretend  to  judge,  —  and  of  such  obvious  irre- 
levancy and  impertinence  that  not  one  of  the  Arbitrators 
condescended  to  notice  them,  except  Sir  Alexander 
Cockburn. 

"  The  presentation  in  the  British  Case  of  considerations 
of  this  order,  worthless  and  absurd  as  argument,  and 
wantonly  offensive  to  the  United  States,  was,  in  my  judg- 
ment, an  outrageous  act,  compared  with  which,  in  pos- 
sible susceptibility  of  blame,  there  is  nothing  to  be  found 
in  any  of  the  affirmative  documents  presented  by  the 
American  Government.  .  .  . 

"  I  mention  these  circumstances  for  the  purpose  of 
showing  how  relatively  unjust  it  was  to  impute  offensive- 
ness  of  spirit  and  language  to  the  American  Case,  in  view 
of  the  much  more  objectionable  things  in  the  British  Case; 
and  for  the  further  purpose  of  pertinently  stating  that  it 
was  undignified  for  Great  Britain  to  complain  of  the 
manner  in  which  the  Agent  or  Counsel  of  the  United 
States  might  see  fit  to  argue  our  cause,  as  it  would  be  for 
the  American  Government  to  undertake  to  prescribe 
limits  of  discretion  in  this  respect  to  the  Agent  or  Counsel 
of  Great  Britain."  1 

The  Case  of  Great  Britain  reflects  a  great  deal  of 
credit  upon  its  authors,  chief  of  whom  was  Moun- 
tague  Bernard.  It  skilfully  presents  every  extenuat- 
ing consideration  that  could  possibly  be  advanced 

1  The  Treaty  of  Washington,  pp.  60-61. 


154  THE  GENEVA  TRIBUNAL 

to  sustain  the  position  that  the  British  Government 
did  its  whole  duty  toward  the  United  States.  The 
plan  is  adopted  of  stating  several  abstract  proposi- 
tions, and  then  applying  them  to  the  facts  as  col- 
lated. The  leading  ground  of  defence  is  comprised  in 
the  assumption  that  the  Foreign  Enlistment  Act,  of 
1819,  measured  the  extent  of  England's  neutral 
obligations.  This  idea  is  brought  forward  again  and 
again.  The  officials  of  the  United  States,  it  was  said, 
knew  more  of  the  truth  as  to  what  was  going  on  at 
Liverpool  than  did  the  Government.  The  courts 
were  open  to  them.  If  they  did  not  bring  forward 
competent  evidence  enough,  it  was  no  fault  of  the 
British  Government.1  The  British  Counter-Case,  it 
will  be  seen,  preserves  everywhere  a  dignified  tone. 
It  replies  hi  detail  to  the  various  propositions  ad- 
vanced in  the  Case  of  the  United  States,  and  among 
other  matters  discusses  what  is  "due  diligence" 
under  the  Three  Rules  of  the  Treaty.  The  argu- 
ment still  adheres  to  the  idea  that  the  municipal  law 
of  Great  Britain  is  to  be  invoked  by  the  complaining 
Government.  The  neutral  Government  must  have 
"  reasons  which  can  be  exposed  in  due  time  to  the 
test  of  judicial  enquiry,  for  such  a  belief  as  is  suffi- 
cient to  justify  it  in  setting  the  machinery  of  the  law 
in  motion."  2  The  cumbrous  method  of  procedure 
in  enforcing  the  Act  of  1819  is  adduced  as  if  to  excuse 

1  Legislation  more  rigid  and  calculated  to  prevent  violation  of 
neutrality  was  enacted  in  1870. 

2  Gen.  Arb.,  vol.  ii,  p.  372. 


THE  PLEADINGS  155 

apparent  delay.  The  board  of  customs  transmit  affi- 
davits to  the  Treasury,  and  then  the  opinion  of  the 
law-officers  of  the  Crown  will  probably  be  taken. 
The  following  naive  information  is  given  to  the 
Tribunal  :- 

"  Some  little  time  is  consumed  in  the  mere  transmission 
of  the  papers,  the  Custom-house  being  situated  on  the 
Thames,  below  London  Bridge,  and  the  Treasury  in 
Whitehall,  near  the  Houses  of  Parliament,  the  distance 
between  the  two  being  about  three  miles."  * 

The  dominating  theory  of  the  defence  had  already 
been  elaborately  put  forth  in  Mountague  Bernard's 
scholarly  and  valuable  work,  "The  Neutrality  of 
Great  Britain  during  the  Civil  War  in  America." 

Professor  Bernard  was  a  student,  and  not  a  man  of 
affairs.  He  had  enjoyed,  I  believe,  no  experience  in 
the  practice  of  diplomacy.  Lord  Selborne  praises 
his  great  attainments  in  general  and  international 
jurisprudence.  Bernard  writes  in  a  calm  tone,  and  in 
a  style  of  marked  purity,  —  and  one  might  almost 
say  of  sweetness  of  temper.  We  are  prepared  to  un- 
derstand what  Selborne  means  when  he  says  of 
him:  — 

"  He  was  a  man  of  singular  gentleness,  with  a  wide 
range  of  intellectual  interests;  never  putting  himself  for- 
ward, but  always  ready  for  any  duty  which  he  could  per- 
form. .  . .  Whatever  praise  either  the  matter  or  the  man- 
ner of  the  British  Case,  Counter-Case  and  Summary  of 
Argument  may  have  deserved,  was  mainly  due  to  him."  2 
1  Gen.  Arb.t  vol.  ii,  p.  410.  2  Memorials,  vol.  i,  p.  251. 


156  THE  GENEVA  TRIBUNAL 

The  same  quiet,  gentle  influence  is  to  be  observed 
in  more  than  one  passage  of  the  Case  and  Counter- 
Case.  If  he  who  is  disposed  to  play  the  critic  shall 
note  in  Mountague  Bernard's  pages  a  lack  of  force 
and  trace  a  like  remissness  in  the  official  documents 
of  which  we  are  now  speaking,  he  must  in  justice 
accord  high  praise  to  the  spirit  of  fairness  which  they 
breathe.  This  devoted  Englishman,  it  is  plain  to 
see,  did  for  his  country  all  that  any  one  could  do  — 
and  that  with  a  fine  simplicity  and  a  sincere  convic- 
tion that  the  motives  and  conduct  of  the  Ministry 
had  been  as  high-minded  in  the  performance  of  their 
duties  as  was  he  himself  hi  vindicating  the  honor 
and  the  integrity  of  England. 

The  British  Counter -Case  filled  four  folio  vol- 
umes. It  was  composed  of  ten  parts,  the  preparation 
of  which  must  have  entailed  long  and  severe  labor. 
The  Counter-Case  of  the  United  States  (which  closed 
the  pleadings)  was  made  up,  as  already  stated,  of 
two  large  folio  volumes.  Much  of  the  material  furn- 
ished on  either  side  might  just  as  well  have  been 
omitted.  At  all  events,  the  Arbitrators  were  put  in 
possession  of  everything  bearing  in  the  least  degree 
upon  the  issue  that  could  possibly  be  gathered  up 
in  the  archives  of  both  Governments;  and  the  facts 
were  skilfully  arranged  and  summarized. 

The  Counter-Cases,  it  will  be  remembered,  were 
exchanged  by  the  respective  Agents,  who  met  for  the 
purpose  at  Geneva  on  15  April.  Neither  party  could 
have  known  what  was  contained  in  the  Counter-Case 


THE  PLEADINGS  157 

of  the  other.  The  only  portion  that  the  reader  may 
care  to  see  quoted  here  is  the  following  extract 
from  the  remarks  of  Great  Britain  on  the  subject  of 
the  charge  lodged  against  her  of  harboring  a  con- 
scious unfriendly  purpose  towards  the  United 
States : — 

"  To  the  second  chapter  of  the  American  Case,  which 
imputes  to  the  British  Government  hostile  motives,  and 
even  insincere  neutrality,  no  reply  whatever  will  be 
offered  in  this  Counter-Case.  The  British  Government 
distinctly  refuses  to  enter  upon  the  discussion  of  these 
charges.  First,  because  it  would  be  inconsistent  with  the 
self-respect  which  every  Government  is  bound  to  feel; 
secondly,  because  the  matter  in  dispute  is  action  and 
not  motive,  and  therefore  the  discussion  is  irrelevant; 
thirdly,  because  to  reply,  and  to  enter  upon  a  retaliatory 
exposition,  must  tend  to  inflame  the  controversy  which, 
in  the  whole  tone  and  tenor  of  its  Case,  the  British  Gov- 
ernment has  shown  its  desire  to  appease;  and  lastly,  with 
respect  to  the  charges  themselves,  if  they  were  of  any 
weight  or  value,  the  British  Government  would  still  con- 
tend that  the  proper  reply  to  them  was  to  be  found  in  the 
proof  which  it  has  supplied  that  its  proceedings  have 
throughout,  and  in  all  points,  been  governed  by  a  desire, 
not  only  to  fulfil  all  clear  international  duties  toward  the 
Government  of  the  United  States,  but  likewise,  when  an 
opportunity  was  offered,  even  to  go  beyond  what  could 
have  been  demanded  of  it  as  of  right,  in  order  to  obviate 
all  possibility  of  cavil  against  its  conduct."  1 

Great  Britain  in  keeping  silence  is  here  seen  to 

1  Gen.  Arb.,  vol.  ii,  p.  203. 


158  THE  GENEVA  TRIBUNAL 

have  pursued  an  eminently  discreet  course.  The 
world  may  judge  what  foundation  really  existed  for 
the  charge.  While  convinced  that  the  charge  is 
fully  sustained  by  the  testimony  adduced,  I  deem  it 
not  inappropriate,  in  passing  from  the  subject,  to 
quote,  in  fairness  to  those  who  would  acquit  Great 
Britain  of  an  unfriendly  feeling,  the  words  of  Count 
Sclopis,  President  of  the  Tribunal,  who,  after  finding 
that  Great  Britain  had  failed  to  observe  due  dili- 
gence, remarks :  — 

"  No  Government  is  safe  against  certain  waves  of  public 
opinion  which  it  cannot  master  at  its  will.  I  am  far  from 
thinking  that  the  animus  of  the  English  Government  was 
hostile  to  the  Federal  Government  during  the  war."  l 

1  Gen.Arb.,  vol.  iv,  p.  68.  If  the  reader  cares  to  follow  the  subject 
further,  it  may  interest  him  to  examine  the  criticism  put  forward 
by  an  American  historian  of  to-day,  whose  high  reputation  gives  to 
his  conclusions  an  unusual  weight  and  importance  —  as  reviewed 
by  the  present  writer  in  a  letter  that  appeared  in  The  Nation  of 
24  January,  1907.  The  letter  deals  with  certain  statements  made  by 
Mr.  James  Ford  Rhodes,  the  distinguished  author  of  The  History  of 
the  United  States  from  the  Compromise  of  1850  to  the  Final  Restoration 
of  Home  Rule  at  the  South  in  1877.  It  aims  to  point  out  the  injustice 
of  the  strictures  contained  in  the  sixth  volume  of  this  valuable  work, 
where  Mr.  Rhodes  condemns  in  severe  terms  the  conduct  of  our 
case  at  Geneva  by  Bancroft  Davis,  as  well  as  the  tone  and  temper 
(in  the  American  Case)  of  Mr.  Davis's  arraignment  of  Great  Britain 
—  a  charge  of  mismanagement  which  the  present  writer  conceives 
to  be  without  foundation.  A  reprint  of  the  letter  will  be  found  in 
Appendix  iv,  post. 


CHAPTER  VI 

THE   INDIRECT   CLAIMS  —  THE  TREATY  IN   PERIL 

IN  an  earlier  chapter  describing  the  labors  per- 
formed at  Paris,  intimations  are  conveyed  to  the 
reader  that  our  work  had]  to  be  accomplished  under 
a  cloud  of  doubt  as  to  whether  there  would  be  any 
arbitration  after  all.  During  the  entire  season  that 
had  been  occupied  with  the  preparation  of  the 
Counter-Case  and  Argument,  and  even  down  to  the 
hour  of  departure  from  Paris  to  Geneva,  there  pre- 
vailed the  direst  apprehensions  of  a  rupture  of  the 
Treaty.  That  result  might  have  meant  war.  At  this 
distance  of  time  it  seems  passing  strange  that  many 
months  after  the  signing  of  a  Treaty  between  two 
great  English-speaking  nations  it  could  possibly 
happen  that  one  of  the  parties  to  an  agreement  to 
refer  to  arbitration  "  all  claims  . . .  generically  known 
as  the  Alabama  Claims  "  should  refuse  to  go  forward 
unless  the  other  would  withdraw  a  portion  of  the 
claims  advanced,  and  stipulate  that  such  portion 
never  came  within  the  scope  of  the  agreement  to 
refer.  Yet  such  is  the  fact. 

To-day  should  a  mention  of  the  Geneva  Tribunal 
of  Arbitration  arise  in  a  circle  of  well-informed  per- 
sons, and  each  individual  be  asked  to  state  what  one 
incident  connected  with  its  history  has  left  upon  the 


160  THE  GENEVA  TRIBUNAL 

memory  the  most  vivid  impression,  nine  out  of  ten 
would  answer — "The  indirect  claims."  The  subject 
of  being  exposed  to  the  danger  of  having  to  pay  an 
enormous  bill  for  the  Alabama  Claims  completely 
absorbed  for  the  time  being  public  attention  in 
England.  Almost  everybody  in  the  kingdom  was 
seized  and  carried  away  by  a  dreadful  fear  lest  the 
country  be  overwhelmed  by  an  appalling  calamity. 
It  is  not  too  much  to  say  that,  with  the  exception  of 
a  time  of  actual  war,  or  of  a  political  upheaval  like 
the  French  Revolution,  perhaps  never  before  had  the 
world  witnessed  the  spectacle  of  so  tremendous  a 
tidal  wave  of  popular  feeling.  Or,  to  change  the 
figure,  never  had  there  swept  through  the  land  such 
a  political  hurricane. 

A  black  cloud  came  up  on  the  horizon  —  a  portent 
of  disaster.  Then  the  storm  raged  with  unabated 
fury  —  until  at  last,  in  a  trice,  it  subsided,  and  once 
more  a  calm  prevailed.  That  memorable  season  was 
one  long  strain  of  anxiety  to  the  statesmen  and 
leaders  of  public  thought  of  Great  Britain.1 

Let  us  briefly  pass  in  review  the  events  of  this  ex- 
traordinary crisis.  In  an  endeavor  to  account  for 
what  now  seems  to  have  been  a  senseless  panic,  we 
shall  examine  the  alleged  grounds  upon  which  Great 

1  The  first  untoward  result  to  be  apprehended  was  a  break-up  of 
the  Gladstone  Cabinet.  Says  Mr.  Forster:  "It  is  no  secret  now  that 
the  Cabinet  was  the  scene  of  more  than  one  heated  discussion  dur- 
ing those  anxious  weeks,  and  that  the  tension  was  so  severe  at  times 
as  almost  to  threaten  the  existence  of  the  Ministry."  Reid:  Life  of 
Forster,  vol.jii,  p.  27. 


THE  TREATY  IN  PERIL  161 

Britain  fancied  that  she  had  the  right  to  rely  for 
justification  in  virtually  threatening  to  disrupt  the 
Treaty.  The  closer  it  is  looked  into,  the  more  seri- 
ous does  this  chapter  of  political  history  appear, — 
a  great  nation  frightened  by  a  spectre. 

To  begin  with,  we  must  understand  what  is  meant 
by  the  term  "  indirect  claims."  A  more  fitting  term 
perhaps  would  be  "  national  claims,"  as  distinguished 
from  the  claims  of  individual  owners  of  ships  or 
cargoes.  Mr.  Gushing  observes :  — 

"  The  expression  ['  indirect  claims  ']  is  incorrect,  and  if 
admissible  as  a  popular  designation,  it  must  not  be  per- 
mitted to  produce  any  misconception  of  the  true  question 
at  issue.  It  would  be  less  inaccurate  to  speak  of  them 
as  '  claims  for  indirect  or  constructive  losses  or  damages/ 
which  is  the  more  common  phrase  in  the  diplomatic 
papers;  and  less  inaccurate  still  to  say  'remote  or  conse- 
quential losses  and  damages/  But,  in  truth,  none  of 
these  expressions  are  correct,  and  the  use  of  them  has 
done  much  to  obscure  the  actual  point  of  controversy, 
and  to  divert  the  public  mind  into  devious  paths  of  argu- 
ment or  conclusion."  l 

From  the  first,  the  Government  of  the  United 
States  had  notified  Great  Britain  that  the  depreda- 
tions of  the  Confederate  cruisers  were  inflicting  in- 
juries upon  the  commerce  of  the  Union,  injuries  that 
were  national  in  character.  Mr.  Adams  stated,  as 
early  as  the  20th  November,  1862,  in  a  note  to  Lord 
John  Russell,  that  he  was  instructed  by  his  Govern- 

1  The  Treaty  of  Washington,  p.  35. 


162  THE  GENEVA  TRIBUNAL 

ment  to  "  solicit  redress  for  the  national  and  private 
injuries  already  thus  sustained."  *  So,  on  the  20th 
May,  1865,jMr.  Adams,  writing  to  Lord  John  Rus- 
sell, says :  — 

"  In  addition  to  this  direct  injury,  the  action  of  these 
British-built,  manned  and  armed  vessels  has  had  the 
indirect  effect  of  driving  from  the  sea  a  large  portion  of 
the  commercial  marine  of  the  United  States,  and  to  a  cor- 
responding extent  enlarging  that  of  Great  Britain  ";  that 
"  injuries  thus  received  are  of  so  grave  a  nature  as  in  rea- 
son and  justice  to  constitute  a  valid  claim  for  reparation 
and  indemnification."  2 

Lord  Clarendon  wrote  Mr.  Thornton  (the  British 
Minister  at  Washington),  6  November,  1869,  that  he 
was  officially  informed  by  Mr.  Motley  that,  while 
the  President  at  that  time  abstained  from  pronounc- 
ing on  the  indemnities  due  for  the  destruction  of 
private  property,  he  also  abstained  from  speaking 
"  of  the  reparation  which  he  thinks  due  by  the  Brit- 
ish Government  for  the  larger  account  of  the  vast  na- 
tional injuries  it  has  inflicted  on  the  United  States. "3 

The  character  of  these  national  claims  was  per- 
fectly well  known  to  the  British  Government,  and 
known,  presumably,  also  to  the  people  of  Great 
Britain.  The  losses  and  injuries  must  surely  have 
been  a  matter  of  public  comment.  When  the  Joint 
High  Commissioners  met  at  Washington,  early  in 
1871,  to  frame  a  treaty,  the  Americans  in  their 

1  Gen.  Arb.}  vol.  ii,  p.  461. 

2  Ibid.  3  Ibid.,  p.  462. 


THE  TREATY  IN  PERIL  163 

opening  statement  described  the  demands  of  the 
United  States  as  follows :  — 

"  Extensive  direct  losses  in  the  capture  and  destruction 
of  a  large  number  of  vessels  with  their  cargoes,  and  in  the 
heavy  national  expenditure  in  the  pursuit  of  the  cruisers; 
and  indirect  injury  in  the  transfer  of  a  large  part  of  the 
American  commercial  marine  to  the  British  flag,  and  in 
the  enhanced  payment  of  insurance,  in  the  prolongation 
of  the  war,  and  in  the  addition  of  a  large  sum  to  the  cost 
of  the  war  and  the  suppression  of  the  rebellion."  l 

We  are  concerned  now  with  a  review  of  what  the 
United  States  claimed.  How  far  this,  or  that,  species 
of  claims  might  turn  out  to  be  capable  of  proof,  and 
should  properly  be  adjudged  collectible  of  a  neg- 
ligent neutral,  is  another  and  a  totally  different 
question. 

We  reach  the  conclusion  that  the  term  "  indirect 
claims,"  though  in  one  sense  a  misnomer,  was  in- 
tended to  comprehend  demands  for  the  redress  of 
national  injuries,  such  as  have  just  been  enumer- 
ated,— ;for  losses  beyond  those  inflicted  upon  in- 
dividual, or  corporate,  owners  of  property,  —  losses 
sustained  by  the  people  of  the  United  States,  as  a 
whole,  as  the  indirect  result  of  the  depredations  of 
the  Confederate  cruisers.  There  were  instances  of 
a  direct  loss  of  property  belonging  to  the  United 
States,  such  as  resulted  from  the  sinking  of  the 

1  Gen.  Arb.,  vol.  iv,  p.  1.  The  five  volumes,  containing  the  state- 
ment of  the  losses  on  eleven  vessels,  were  lying  on  the  table  during 
the  Conferences  of  the  Joint  High  Commission.  MS.  Archives,  De- 
partment of  State. 


164  THE  GENEVA  TRIBUNAL 

United  States  steamer  Hatteras,  off  Galveston,  by 
the  Alabama;  and  the  capture  of  the  revenue-cutter 
Caleb  Gushing  by  the  Archer,  a  tender  of  the  Florida. 
The  United  States  also  lost  one  or  two  cargoes  of 
coal  on  merchant  vessels  under  charter  to  the  Gov- 
ernment. Claims  for  these  particular  losses  were 
presented,  but  they  appear  to  have  dropped  out  of 
sight.  In  the  American  special  reply  argument  on 
"Interest"  is  to  be  found  a  "  Summary  of  the  Amer- 
ican claims."  It  does  not  include  claims  for  the  two 
vessels  just  mentioned,  and  the  text  of  the  argument 
confines  the  claims  to  "  actual  injuries  to  private  suf- 
ferers." x  This  narrowing  of  the  field  of  damages  is 
important,  as  bearing  upon  any  future  case,  where 
attempt  may  be  made  to  hold  the  United  States  re- 
sponsible for  an  alleged  failure  hi  the  performance  of 
a  neutral  duty. 

A  single  paragraph  of  this  special  reply  is  worth 
quoting^for  the  happy  appellation  applied  to  the 
Confederate  cruisers.  Great  Britain  had  argued,  as 
a  ground  against  the  allowance  of  interest,  that  the 
United  States  failed  "  sooner  to  cut  short  the  career 
of  the  cruisers."  Says  the  special  reply:  — 

"  As  to  the  action  of  the  United  States,  however  unsuc- 
cessful, Jt^will  be  time  enough  for  Great  Britain  to  criti- 
cise it  as  inefficient  when  its  Navy  has  attempted  the 
chase  of  these  light-footed  vagabonds,  which  found  their 
protection  in  neutral  ports  from  blockade  or  attack,  and 
sought  remote  seas  for  their  operations  against  peaceful 
1  Gen.  Arb.,  vol.  iii,  p.  573. 


THE  TREATY  IN  PERIL  165 

commerce.   But  this  consideration  has  no  special  applica- 
tion to  the  question  of  interest."  l 

It  is  not  of  present  moment  to  consider  whether 
claims  of  this  nature  are  capable  of  being  enforced 
against  a  delinquent  neutral  nation.  That  is  the 
question  that  the  United  States  proposed  that  the 
Tribunal  should  determine.2  Our  concern  now  is  to 
ascertain  first  what  is  meant  by  the  term  "  indirect 
claims";  and,  secondly,  whether  such  claims  were 
included  as  a  class  of  claims  among  those  that,  under 
the  language  of  the  Treaty,  were  to  be  laid  before 
the  Arbitrators  for  a  decision  as  to  their  validity. 

The  official  copy  of  the  Case  of  the  United  States 
was  handed  to  the  Agent  of  Great  Britain,  on  15th 
December,  1871,  at  Geneva.  A  messenger  took 
it  post-haste  to  London.  The  text  of  the  Case  must 
have  been  given  to  the  public  in  England  soon  after 
that  date,3  for  it  was  not  a  fortnight  before  the 
London  press  were  making  a  vigorous  attack  upon 
the  position  maintained  by  the  United  States.  This 
attack  was  levelled  against  the  Case  as  a  whole;  and 
the  criticism  of  the  amount  of  damages  claimed  was 
not  that  any  particular  class  of  claims  did  not  fall 
within  the  words  of  the  Treaty,  but  that  conse- 
quential damages  were  not  recoverable.  The  Daily 
News,  for  example,  spoke  of  "extravagant  de- 

1  Gen.  Art.,  vol.  iii,  p.  571. 

2  This  subject  receives  a  measure  of  attention  in  Appendix  v,  post. 
1  "  Bently  has  republished  the  Case  in  London."  Davis  to  George 

Bancroft,  13  February,  1872,  MS.  Archives,  Dept.  of  State. 


166         "THE  GENEVA  TRIBUNAL 

mands  intended  as  an  electioneering  card."  The 
Saturday  Review  characterized  the  Case  as  "per- 
verted and  spiteful/7  and  "a  malignant  composi- 
tion." The  Spectator  charged  "sharp  practice." 
"Absurd  pretensions"  and  "offensive  tirade"  were 
phrases  reserved  for  use  at  a  later  stage  of  attack.  In 
fact,  the  press  found  fault  indiscriminately  with 
nearly  everything  contained  in  the  Case  except  the 
one  feature  afterwards  made  the^chief  subject  of 
complaint,  namely,  the  putting  forward  of  demands 
not  included  in  the  submission  under  the  Treaty. 
That  objection,  the  record  shows,  was  entirely  over- 
looked by  the  keen  critics  of  the  British  press.  It 
made  an  appearance  only  weeks  after  the  inter- 
change of  the  documents  at  Geneva.  "The  objec- 
tion, so  far  as  I  am  aware,"  says  Mr.  Davis,  "  was  not 
taken  by  any  person  entitled  to  speak  by  the  author- 
ity of  the  Government  until  a  still  later  day."  1 

The  first  comtnent  on  the  Case  appeared  in  the 
Morning  Post  of  28  December,  1871:  "The  extra- 
vagant nature  of  the  demands  is  the  best  evidence 
that  the  Arbitrators  .  .  .  will  refuse  to  entertain 
them."  There  is  not  a  word  about  infraction  of  the 
Treaty.2 

For  more  than  a  month  no  criticism  of  the  Case 
from  any  quarter  seems  to  have  been  directed 
against  its  having  included  the  "indirect  claims"  in 

1  Davis  to  Fish,  Report  21  Sept.,  1872,   Gen.  Arb.,  vol.  iv,  p.  5. 
»  Mr.  Davis  to  Secretary  Fish,  1  March,  1872,  MS.  Archives,  De- 
partment of  State. 


THE  TREATY  IN  PERIL  167 

the  classification  of  claims  for  which  damages  were 
asked.  Lord  Westbury,  so  the  Earl  of  Selborne  tells 
us,  wrote  to  Lord  Granville  7  January,  1872,  urging 
him  to  refuse  to  treat  the  indirect  claims  as  matters 
of  discussion  before  the  Arbitrators.1  This  was  the 
earliest  protest  to  reach  the  Ministry.  It  was  not 
until  the  1st  of  February,  however,  that  the  London 
newspapers  awoke  to  the  impending  danger  of  Eng- 
land's going  to  Geneva  with  this  obnoxious  class  of 
claims  embraced  in  the  computation.  Sir  Roundell 
Palmer  appears  completely  to  have  lost  his  head,  to 
judge  from  his  letter  of  10  January  to  Granville:  — 
"  Lord  Westbury  is  not  far  wrong  when  he  says  that 
nobody  here  would  have  been  willing  to  go  to  arbitration 
upon  such  claims  as  these,  advanced  upon  such  grounds, 
if  this  '  Case '  could  have  been  seen  beforehand.  That 
claims  upon  this  country  for,  it  may  possibly  be,  several 
hundreds  of  millions  sterling  (for  who  can  estimate  the 
single  item  of  the  loss  in  the  carrying  trade,  to  say  nothing 
of  war  expense?)  should  be  referred  to  the  decision  of  a 
Swiss,  a  Brazilian,  and  an  Italian  lawyer,  —  if  lawyers 
even  they  are,  —  this  alone  would  be  a  sufficient  cause  for 
disquietude.  .  .  .-  I  look  upon  the  '  Case '  as  an  attempt 
to  evade  and  enlarge  the  limits  within  which  the  subject- 
matter  of  the  reference  to  the  Arbitrators  was  intended  to 
be  confined  by  the  Treaty  of  Washington,  and  to  found 
enormous  and  intolerable  claims  upon  the  enlargement  of 
those  limits."  2 

Sir  Roundell  prepared  a  memorandum  hi  which  he 
appears  to  have  demonstrated  to  his  own  satisfac- 

1  Memorials,  vol.  i,  p.  231.  a  Ibid:,  p.  233. 


168  THE  GENEVA  TRIBUNAL 

tion  from  the  despatches  "  that  the  words  in  which 
the  subject-matter  of  the  reference  to  arbitration 
was  defined  had  a  'known'  sense,  comprehending 
only  the  claims  for  direct  losses  resulting  from  the 
captures  made  by  the  Alabama  and  other  cruisers."  l 

On  Friday,  2  February,  1872,  General  Schenck 
cabled  to  Secretary  Fish:  "London  journals  all  de- 
mand that  the  United  States  shall  withdraw  claims 
for  indirect  damages,  as  not  within  intention  of  the 
Treaty.  Ministry  alarmed.  Am  exerting  myself 
with  hope  to  prevent  anything  rash  or  offensive 
being  done  or  said  by  this  Government.  Evarts 
here  cooperating." 

To  this  despatch  Mr.  Fish  replied,  on  the  3d:— 

"  There  must  be  no  withdrawal  of  any  part  of  the  claim 
presented.  Counsel  will  argue  the  Case  as  prepared, 
unless  they  show  to  this  Government  reasons  for  a 
change.  The  alarm  you  speak  of  does  not  reach  us.  We 
are  perfectly  calm  and  content  to  await  the  award,  and 
do  not  anticipate  repudiation  of  the  Treaty  by  the  other 
side."  2 

There  was  more  or  less  disquiet  in  the  columns  of 
certain  journals  of  the  United  States  following  the 

1  Memorials,  vol.  I,  p.  234.  This  memorandum  is  probably  iden- 
tical with  that  enclosed  byGranville  to  Schenck,  20  March,  1872, 
in  a  long  letter  arguing  that  the  United  States  had  waived  the  "in- 
direct claims  "  before  signing  the  Treaty.  (Gen.  Arb.,  vol.  ii,  pp.  436- 
459.)  He  takes  this  position  under  a  firm  conviction  that  he  is  right; 
and  his  views,  it  is  likely,  strengthened  the  Ministry  at  a  time  when 
Lord  Granville  needed  the  best  legal  advice  he  could  get. 

1  Gen.  Arb.,  vol.  ii,  p.  425. 


THE  TREATY  IN  PERIL  169 

news  of  what  was  going  on  in  England,  but  upon  the 
whole  the  people  attached  no  special  importance  to 
the  new  phase  of  affairs.  They  were  content  to  leave 
matters  to  the  guidance  of  the  Secretary  of  State, 
whose  sagacity  and  prudence  they  admired;  and 
they  knew  likewise  that  the  good  sense  of  the  Presi- 
dent was  to  be  trusted  in  any  emergency.  Hence 
while  panic  was  in  full  sway  on  one  side  of  the  water, 
there  prevailed  on  the  other  a  calm  attention  to  the 
routine  of  business.  Mr.  Gushing  likens  the  alarm 
and  consternation  of  London  to  "  the  spasmodic  agi- 
tation of  men  who  have  lost  their  senses,  rather  than 
intelligent  action."  * 

The  London  press  continued  to  be  vehement  in 
their  mode  of  attack  upon  the  American  Case,  in- 
sinuating, if  not  directly  charging,  bad  faith  upon 
the  representatives  of  the  United  States.  English 
tax-payers  were  not  unmindful  of  the  French  in- 
demnity; and  visions  of  an  enforced  payment  of  an 
enormous  sum  of  money  to  the  United  States  were 
enough  to  magnify  their  fears,  and  create  indigna- 
tion and  hostility  against  the  American  Republic. 
The  Gladstone  Ministry  had  to  satisfy  the  country 
that  no  such  drain  upon  the  national  resources  was 
to  be  put  to  the  test.  Talking  in  Parliament  soon 
began. 

Under  a  democratic  government,  like  that  of  the 
United  States  or  England,  there  is  a  vast  responsi- 
bility laid  upon  the  shoulders  of  the  party  in  power 

1  The  Treaty  of  Washington,  p.  41. 


170  THE  GENEVA  TRIBUNAL 

in  respect  to  foreign  affairs.  The  duty  of  the  states- 
man is  imperative  to  hold  in  check  that  form  of  pre- 
judice against  another  nation  which  may  grow  into 
an  unreasonable  animosity.  Such  duty  consists, 
first  of  all,  in  dealing  frankly  with  the  people.  Of 
some  matters  the  people  are  content  to  be  left  in 
ignorance,  at  least  for  a  while,  so  long  as  diplo- 
matic negotiations  are  going  on;  but  when  the  time 
arrives  for  disclosing  the  facts,  the  whole  truth 
should  be  told.  Opposing  political  parties  are  relied 
on  to  refrain  from  their  customary  attacks  where  the 
question  relates  solely  to  the  conduct  of  a  critically 
important  matter  of  foreign  business.  In  the  present 
instance,  it  would  have  been  better  had  the  English 
people  been  fully  advised,  at  the  time,  as  to  what 
had  been  done  at  Washington  by  their  High  Com- 
missioners, in  reference  to  the  "  indirect  claims " 
growing  out  of  the  depredations  of  the  Alabama  and 
other  cruisers.  The  Commissioners  themselves,  or 
some  of  them,  appear  to  have  brought  back  home  no 
very  clear  idea  upon  the  subject. 

Soon  after  the  Treaty  had  been  signed,  Lord  John 
Russell  (12  June,  1871)  had  moved  an  address  to  the 
Crown,  praying  Her  Majesty  "  not  to  ratify  any  con- 
vention by  which  the  Arbitrators  will  be  bound 
other  than  the  law  of  nations,  and  the  municipal  law 
of  the  United  Kingdom  existing  at  the  period,  etc." 
This  motion  was  aimed  at  the  Three  Rules.  The 
noble  lord,  not  a  little  sensitive  because  he  himself 
was  identified  with  the  escape  of  the  Alabama,  did 


THE  TREATY  IN  PERIL  171 

not  succeed  in  having  his  motion  accepted,  but  his 
voice  could  condemn  the  Treaty.  He  said:  "Every- 
thing has  been  concession  on  our  side;  and  asser- 
tion, I  may  say  without  argument,  on  the  part  of 
the  United  States." 
In  reply,  Lord  Granville  told  the  country:  — 

"  The  noble  earl  said  that  the  United  States  had  made 
no  concessions;  but  in  the  very  beginning  of  the  protocols 
Mr.  Fish  [renewed]  the  proposition  he  had  made  before  to 
much  larger  national  claim  [i.  e.,  to  the  so-called  indirect 
claims].  .  .  .  These  were  pretensions  which  might  have 
been  carried  out  under  the  former  arbitration  [the 
Johnson-Clarendon  Treaty],  but  they  entirely  disappear 
under  the  limited  reference  which  includes  merely  com- 
plaints arising  out  of  the  escape  of  the  Alabama."  l 

Lord  Derby  supported  Lord  Granville. 

Here  was  a  distinct  notice,  amounting  to  a  guar- 
anty, that  Englishmen  need  not  be  disturbed  about 
the  size  of  the  award  (if  any)  that  would  have  to  be 
paid  to  the  United  States,  since  the  claims  for  indirect 
losses  had  been  excluded  by  the  terms  of  the  Treaty 
from  reference  to  the  Tribunal.  Granville  was  con- 
gratulating himself  and  his  colleagues  on  the  way  the 
negotiations  had  turned  out.  On  4th  June,  he  says  in 
a  letter  to  Bright,  who  it  seems  had  been  kept  away 
by  illness :  — 

"  I  never  regretted  your  absence  more  than  during  our 
discussions  [in  the  Cabinet]  on  this  matter,  but  all  has 
ended  well.    There  will  be  much  criticism,  but  no  real  op- 
1  Walpole:  Life  of  Lord  John  Russell,  vol.  i,  p.  363. 


172  THE  GENEVA  TRIBUNAL 

position.  Lord  Russell  was  very  indignant  at  first,  but  I 
believe,  is  moderated.  Roundell  Palmer  will  support  us, 
and  Dizzy  will  not  desert  Northcote."  l 

Of  course,  Lord  Granville  believed  that  the  spectre 
of  the  "indirect  claims"  had  been  laid.  Such  was 
the  report  brought  back  by  Northcote.  We  shall 
presently  discover  that  Northcote  had  deceived 
himself,  and  thereby  had  misled  others.  The  truth 
is,  there  was  no  ground  whatever  for  the  state- 
ment that  the  United  States  had  waived  this  class 
of  claims,  and  that  they  were  not  included  in 
the  submission  of  the  Treaty.  The  Ministry  had 
neglected  to  scrutinize  its  terms  in  the  light  of  the 
protocols.  It  is  a  pity  that  Lord  Granville's  words 
had  not  attracted  wider  attention  at  the  time  they 
were  uttered. 

But  now  the  storm  signals  were  up,  and  Parliament 
became  the  scene  of  a  most  animated  discussion.  Of 
the  Premier,  his  accomplished  biographer  says :  — 

"  In  reporting  to  the  Queen  he  used  language  of  extreme 
vehemence,  and  in  the  House  of  Commons  (9  February, 
1872),  when  Mr.  Disraeli  spoke  of  the  indirect  claims  as 
preposterous  and  wild,  as  nothing  less  than  the  exacting 
of  tribute  from  a  conquered  people,  Mr.  Gladstone  de- 
clared that  such  words  were  in  truth  rather  under  the 
mark  than  an  exaggeration;  and  went  on  to  say  that '  we 
must  be  insane  to  accede  to  demands  which  no  nation 
with  a  spark  of  honour  or  spirit  left  could  submit  to  even 
at  the  point  of  death.'  "  2 

1  Fitzmaurice:  Life  of  Granville,  vol.  ii,  p.  86. 
*  Morley:  Life  of  Gladstone,  vol.  ii,  p.  406. 


THE  TREATY  IN  PERIL  173 

To  an  American  it  looks  as  though  Mr.  Gladstone 
might  have  employed  his  talents  to  a  better  purpose. 
In  this  moment  of  need  he  might  have  given  wiser 
counsel,  had  he  previously  made  himself  familiar 
with  the  subject  even  in  a  minor  degree  by  a  study 
of  the  Treaty  and  of  the  protocols.  Had  he  done 
this,  he  must  have  concluded  that  the  American  Com- 
missioners did  not  waive  the  national  claims;  or,  at 
least,  he  would  have  been  constrained  to  admit  that 
the  question  remained  open,  and  therefore  that  the 
occasion  required  from  him  the  language  of  forbear- 
ance and  moderation.  A  truly  great  leader  should 
have  mastered  the  details  of  the  subject-matter,  and 
then  bent  all  his  energies  to  send  forth  words  of  wise 
counsel  to  allay  the  panic.  The  remark  of  a  recent 
writer  of  late  English  history  seems  to  be  not  far 
astray, —  that  "among  Mr.  Gladstone's  many  tal- 
ents discretion  was  not  the  most  conspicuous."  l 

Diplomatic  correspondence  opens  on  the  3d  of 
February,  1872,  with  a  formal  letter  from  Lord 
Granville,  who  informs  General  Schenck  that  the 
British  Government  holds  that  it  is  not  within  the 
province  of  the  Tribunal  at  Geneva  to  decide  upon 
the  claims  for  indirect  losses.2  On  the  27th,  Schenck 
cables  to  Fish  that  Granville  thinks  they  should 
not  press  for  withdrawal  of  American  Case,  if  the 
United  States  "will  undertake  that  their  Agent  shall 
inform  Arbitrators  that  the  United  States  do  not 

1  Herbert  Paul:  History  of  England,  vol.  iii,  p.  297. 
3  Gen.  Arb.,  vol.  ii,  p.  426. 


174  THE  GENEVA  TRIBUNAL 

ask  award  on  indirect  claims,  nor  that  such  claims 
be  taken  as  an  element  of  consideration  in  a  gross 
award,  nor  brought  forward  hi  case  of  reference  to 
assessors."  Mr.  Fish  promptly  replies:  "  Granville's 
suggestion  inadmissible."  1 

On  the  same  day,  27th  February,  Secretary  Fish 
despatches  to  General  Schenck  a  letter  expressing 
the  surprise  and  regret  of  the  President  at  receiving 
the  intimation  that  Her  Majesty's  Government  hold 
that  it  is  not  within  the  province  of  the  Tribunal  to 
decide  upon  certain  claims  for  indirect  losses  and 
injuries.  Mr.  Fish  points  out  that  all  the  claims  were 
referred.  "  What  they  were  is  a  question  of  fact  and 
of  history.  Which  of  them  are  well  founded  is  a 
question  for  the  Tribunal  of  Arbitration."  As  to  the 
extent  of  the  claims  the  letter  says:  — 

"  It  is  within  your  personal  knowledge  that  this  Gov- 
ernment has  never  expected  or  desired  any  unreasonable 
pecuniary  compensation  on  their  account,  and  has  never 
entertained  the  visionary  thought  of  such  an  extravagant 
measure  of  damages  as  finds  expression  in  the  excited  lan- 
guage of  the  British  press,  and  seems  most  unaccountably 
to  have  taken  possession  of  the  minds  of  some,  even,  of 
the  statesmen  of  Great  Britain."  2 

Later,  our  Minister  cables  Washington  that  Gran- 
ville  desires  to  change  the  language  of  his  proposal. 
The  reply  of  the  Secretary,  29  February,  brings  out 
the  point  clearly:— 

"  Cannot  agree  to  Granville's  proposal  as  made.  De- 
1  Gen.  Arb.,  vol.  ii,  p.  429.  8  Ibid.,  p.  432. 


THE  TREATY  IN  PERIL  175 

sire  to  meet  the  British  Government  in  any  honorable 
adjustment  of  the  incidental  question  which  has  arisen. 
Our  answer  is  very  friendly,  and  will,  we  hope,  open  the 
way  for  a  settlement.  Whatever  the  British  Commis- 
sioners may  have  intended,  or  thought  among  themselves, 
they  did  not  eliminate  the  claims  for  indirect  losses,  they 
never  asked  us  to  withdraw  them,  nor  did  they  allude  to 
them  directly,  or  in  plain  terms;  and  after  the  delibera- 
tions of  the  Joint  Commission  were  closed,  Tenterden 
and  the  British  Commissioners  allowed  them  to  be  form- 
ally enumerated  in  statement  of  4th  May,  without  a 
word  of  dissent."  1 

The  foundation  of  the  British  contention  being 
that  the  indirect  claims  were  waived  by  the  Amer- 
ican Commissioners,  in  the  negotiations  for  the 
Treaty,  the  reader  will  obtain  a  clearer  understand- 
ing of  the  merits  of  the  controversy,  if  for  a  moment 
we  turn  aside  from  the  narrative  of  events  now  oc- 
curring and  go  back  to  the  time  of  the  proceedings 
of  the  Joint  Commission,  that  resulted  in  the  sign- 
ing of  the  Treaty  of  Washington. 

England  sent  her  High  Commissioners  to  the 
United  States,  in  the  spring  of  1871,  because,  as 
Earl  Granville  told  the  House  of  Lords,  it  had  be- 
come necessary, "  in  view  of  the  possibility  of  further 
European  complications,  to  look  at  the  interna- 
tional relations  of  Great  Britain  with  foreign  states 
from  a  new  standpoint."  2  The  Foreign  Secretary 
had  been  advised  that  if  there  were  a  chance  of  war 

»  Gen.  Art.  vol.  ii,  p.  434. 

8  Fitzmaurice:  Life  of  Earl  Granvitte,  vol.  U,  p.  81. 


176  THE  GENEVA  TRIBUNAL 

with  Russia,  about  the  Black  Sea,  it  would  be  as 
well  to  get  causes  of  differences  with  America  out  of 
the  way.1  The  prostration  of  France  hi  1870  gave 
Russia  an  opportunity  for  declaring  herself  no 
longer  bound  by  some  of  the  pro  visions  of  the  Treaty 
of  Paris;  and  even  if  England  had  been  disposed 
to  enter  single-handed  into  a  combat  with  the  Rus- 
sian Empire,  the  attitude  of  the  United  States  placed 
her  under  securities  to  keep  the  peace.2  The  recom- 
mendation to  Congress  by  President  Grant,  that 
individual  claims  be  assumed  by  the  Government, 
was  an  ominous  step  of  which  the  Gladstone  Cabi- 
net were  compelled  to  take  note.  The  Commission- 
ers of  Great  Britain  came  to  Washington,  therefore, 
impressed  with  the  necessity  of  agreeing  to  a  Treaty 
that  should  for  all  tune  put  an  end  to  the  differences 
growing  out  of  the  Alabama  claims.  It  was  a  grave 
situation.  England  could  ill  afford  to  let  this  at- 
tempt at  a  peaceful  negotiation  fail. 

1  Lord  Granville  came  into  office  in  the  summer  of  1870,  after  the 
death  of  Lord  Clarendon.  On  the  19th  of  November,  1870,  Childers, 
First  Lord  of  the  Admiralty,  wrote  to  Granville  as  follows:  — 

"  Has  it  occurred  to  you  that  if  there  is  any  likelihood  of  a  war 
with  Russia  it  is  very  important  that  all  cause  of  difference  with  the 
United  States  should  if  possible  be  got  out  of  the  way,  otherwise 
there  can  be  little  doubt  that  however  unprepared  they  may  be  just 
now,  sooner  or  later  we  shall  have  them  on  our  hands.  Would  it  be 
possible  to  make  overtures  of  such  a  kind  as  to  lead  to  a  prompt  set- 
tlement at  Washington,  including  both  the  Alabama  and  the  St.  Juan 
question?  "  Life  and  Correspondence  of  H.  C.  E.  Childers,  by  his  son, 
Lieutenant-Colonel  Spencer  Childers,  R.  E.  (1901),  vol.  !,  pp. 
173-174. 

2  Walpole:  Life  of  Lord  John  Russell,  vol.  ii,  p.  361. 


THE  TREATY  IN  PERIL  177 

The  Government  of  the  United  States  had  in- 
dulged the  hope  that  an  amicable  settlement  might 
be  effected  by  the  payment  of  a  gross  sum,  in  satis- 
faction of  all  claims.  This  plan,  however,  with  its 
many  obvious  advantages,  was  not  to  be  adopted. 
The  American  Commissioners  as  a  matter  of  course 
were  obliged  to  respect  a  public  sentiment  long  ex- 
isting as  to  the  proper  disposition  of  the  claims  of 
their  own  citizens.  Both  parties  to  the  proposed 
compact  knew  that,  whatever  form  of  words  might 
be  agreed  upon,  the  Treaty  itself  would  have  to  run 
the  gauntlet  of  the  Senate  for  the  approving  two- 
thirds  vote.1 

1  "  The  evil  influence  of  Mr.  Sumner's  speech,  and  of  his  memo- 
randum, followed  the  American  Commissioners  into  the  negotiating 
conferences."  (Mr.  Fish  and  the  Alabama  Claims,  p.  69.)  Says  Sir 
Stafford  Northcote,  writing  9  May,  1871,  to  Mr.  Disraeli: "  I  had  a 
long  talk  with  Sumner  yesterday,  and  De  Grey  is  to  see  him  to-day. 
He  is  very  cautious,  but  I  do  not  think  him  unfriendly.  He  is  very 
anxious  to  stand  well  with  England;  but  on  the  other  hand,  he 
would  dearly  love  to  have  a  slap  at  Grant.  We  have  paid  him  a 
great  deal  of  attention  since  he  has  been  deposed,  and  I  think  he  is 
much  pleased  at  being  still  recognized  as  a  power."  Lang:  Life  of  the 
Earl  of  Iddeskigh  (Sir  Stafford  Northcote),  vol.  ii,  p.  23. 

Northcote  had  written  a  few  days  before  (5  May)  to  Earl  Gran- 
ville,  that  he  was  very  hopeful  that  the  Senate  would  confirm  the 
Treaty.  "Catacazy  ...  is,  I  believe,  working  hard  against  us,  but 
we  may  counteract  his  influence.  We  are  still  sorely  puzzled  about 
Sumner,  who  is,  I  fear,  too  civil,  but  who  talks  in  an  encouraging 
strain  to  some  of  our  American  colleagues,  as  well  as  being  very 
democratic  towards  ourselves.  The  Democrats,  too,  are  still  a  mys- 
tery. We  shall  have  a  great  advantage  if  we  are  able  to  meet  them 
day  by  day  while  the  discussion  is  going  on,  for  they  are  some  of 
them  very  good  men,  and  one  at  least  (Bayard)  a  really  nice  fellow, 


178          THE  GENEVA  TRIBUNAL 

Keeping  in  mind,  then,  both  the  anxious  desire  on 
the  part  of  the  British  Commissioners  that  their 
efforts  should  prove  successful,  and  the  obligation 
resting  upon  the  American  Commissioners  to  meet 
the  expectations  of  the  country,  —  expectations 
that  had  been  carried  to  a  high  pitch  by  the  publica- 
tion of  Senator  Sumner's  indictment  of  Great  Brit- 
ain, —  let  us  see  just  what  took  place  with  reference 
to  the  national  (or  indirect)  claims. 

Secretary  Fish  drew  up  a  paper  upon  the  subject 
of  the  Alabama  Claims.  He  read  this  paper  before 
the  Commissioners,  on  the  8th  of  March.  A  copy 
was  handed  to  the  British  Commissioners.  The  vital 
portion  of  the  statement  bearing  upon  the  indirect 
claims,  as  set  forth  in  that  paper,  reads  as  follows:  - 

"  The  history  of  the  Alabama  and  other  cruisers  .  .  . 
showed  extensive  direct  losses  .  .  .  and  indirect  injury 
in  the  transfer  of  a  large  part  of  the  American  commercial 
marine  to  the  British  flag,  in  the  enhanced  payments  of 
insurance,  in  the  prolongation  of  the  war,  and  in  the  addi- 
tion of  a  large  sum  to  the  cost  of  the  war  and  the  suppres- 
sion of  the  Rebellion.  ...  In  the  hope  of  an  amicable 
settlement  no  estimate  was  made  of  the  indirect  losses, 
without  prejudice,  however,  to  the  right  to  indemnifica- 
tion on  their  account  in  the  event  of  no  such  settlement 
being  made."  l 

and  they  will  hardly  like  to  talk  friendly  at  night  and  vote  hostile 
in  the  morning.  Still  the  caucus  power  is  very  great  here."  .  .  . 
Fitzmaurice:  Life  of  Granvilk,  vol.  ii,  p.  88. 

1  Mr.  Fish  and  the  Alabama  Claims,  p.  74.  The  36th  Protocol 
containing  this  statement  is,  because  of  its  importance,  printed  in 


THE  TREATY  IN  PERIL  179 

We  must  now  scrutinize  the  language  of  the 
Treaty,  remembering  that  the  statement  we  have 
just  read  was  embodied  in  a  Protocol  subscribed 
four  days  only  before  the  signing  of  the  Treaty 
itself. 

ARTICLE  I 

"Whereas  differences  have  arisen  between  the  Govern- 
ment of  the  United  States  and  the  Government  of  Her 
Britannic  Majesty,  and  still  exist,  growing  out  of  the  acts 
committed  by  the  several  vessels  which  have  given  rise 
to  the  claims  generically  known  as  the  'Alabama  Claims,' 
[here  follows  an  expression  of  regret.] 

"  Now,  in  order  to  remove  and  adjust  all  complaints 
and  claims  on  the  part  of  the  United  States,  and  to  pro- 
vide for  the  speedy  settlement  of  such  claims  which  are 
not  admitted  by  Her  Britannic  Majesty's  Government, 
the  High  Contracting  Parties  agree  that  all  the  said 
claims,  growing  out  of  acts  committed  by  the  aforesaid 
vessels,  and  generically  known  as  the  'Alabama  Claims/ 
shall  be  referred  to  a  Tribunal  of  Arbitration.  .  .  ." 

Surely,  the  average  mind  would  suppose  that  the 
Treaty  here  undertakes  to  dispose  of  all  claims,  of 
whatsoever  nature  they  may  be,  that  grew  out  of  the 

full  as  Appendix  i  to  this  volume.  The  reader  is  advised  to  consult 
the  entire  text  as  there  given.  If  he  would  pursue  the  subject 
further,  he  will  find  the  British  view  of  the  meaning  of  the  Treaty 
elaborately  set  forth  in  Earl  Granville's  letter  to  General  Schenck> 
of  20th  March,  1872  (Gen.  Arb.,  vol.  ii,  pp.  436-459);  and  a  reply 
thereto,  vindicating  the  position  of  the  United  States,  in  Secretary 
Fish's  despatch,  16  April,  1872,  to  General  Schenck  (Ibid.,  pp.  460- 
474). 


180          THE  GENEVA  TRIBUNAL 

acts  of  these  vessels.  One  would  naturally  conclude 
that  the  indirect  losses,  of  which  complaint  had  been 
made,  and  which  the  statement  just  referred  to 
treats  as  classes  of  claims,  are  included  in  the  term 
"  all  the  said  claims."  The  reader  not  given  to  hair- 
splitting would  say  at  once:  "  Of  course,  here  is  an 
agreement  to  dispose  of  the  whole  subject  of  com- 
plaint, of  every  kind  and  description,  growing  out  of 
the  alleged  neglect  of  Great  Britain  in  respect  to  the 
Alabama  and  other  cruisers,  so  as  to  end,  by  the 
judgment  of  the  Tribunal  of  Arbitration,  every  cause 
of  difference  between  the  two  countries  traceable  to 
the  depredations  of  these  Confederate  cruisers." 

With  all  due  respect  to  the  British  statesmen  of 
that  period,  such  must  be  pronounced  to  be  the  com- 
mon-sense view  of  what  the  Treaty  meant.  Such 
certainly  was  the  understanding  of  the  American 
Commissioners.  Such  was  the  interpretation  relied 
upon  by  the  Senate,  or  the  proposed  Treaty,  we  may 
be  sure,  would  not  have  been  consented  to  by  that 
body. 

Let  us  now  turn  to  the  argument  advanced  by 
Great  Britain  in  support  of  her  position  that  claims 
for  national,  or  indirect,  losses  were  not  meant  to  be 
referred  to  the  Tribunal  at  Geneva.  It  is  an  inter- 
esting example  of  how  widely  two  opposing  parties 
may  differ  as  to  the  meaning  of  an  agreement  which 
they  have  taken  great  pains  to  reduce  to  writing, 
conceived  to  be  as  plain  as  possible. 

That  the  British  Commissioners,  after  putting 


THE  TREATY  IN  PERIL  181 

their  names  to  the  Treaty,  came  back  to  England 
and  reported  that  they  had  secured  a  waiver  from 
the  United  States  of  the  indirect  claims,  is  a  fact 
not  open  to  contradiction.  The  question  we  have  to 
solve  is,  Were  they  justified  in  so  reporting? 

The  most  communicative  of  their  number  appears 
to  have  been  Sir  Stafford  Northcote,  —  afterwards 
Earl  of  Iddesleigh.  Since  he  was  not  of  the  Glad- 
stone party,  one  might  conjecture  that  he  would  have 
been  moderate  in  his  praise  of  what  the  High  Com- 
missioners had  accomplished.  But  nobody  showed 
himself  more  pleased  than  Sir  Stafford.  Socially  a 
very  attractive  man,  he  delighted  Washington,  and 
was  himself  delighted  in  turn.  In  a  light-hearted 
strain  he  writes  from  Washington,  as  follows,  to 
Mr.  Disraeli,  9  May,  1871,  the  day  after  the  Treaty 
had  been  concluded :  — 

"  You  will  doubtless  observe  that  there  is  significance 
in  every  line  of  the  Preamble  to  the  first  Article.  Incedit 
per  ignes,  etc.  The  object  is  to  remove  and  adjust  '  all 
complaints '  as  well  as  '  claims.'  The  '  complaints '  in- 
tended are  those  which  bear  on  the  '  animus '  of  Great 
Britain,  as  evinced  not  only  by  her  alleged  negligence  in 
the  matter  of  the  vessels,  but  also  by  her  alleged  prema- 
ture recognition  of  the  belligerency  of  the  South;  and  the 
word  covers  all  the  allegations  as  to  our  having  been 
responsible  for  the  prolongation  of  the  war,  etc.  The 
same  ideas  are  connected  with  the  word  '  differences '  in 
the  first  line.  .  .  .  Our  object  was  to  let  in  the  claims  of 
the  Government  without  letting  in  all  those  wild  demands. 
While,  therefore,  we  refer  to  the  differences  and  com- 


182          THE  GENEVA  TRIBUNAL 

plaints  in  general  language,  we  submit  to  arbitration  only 
the  claims  '  growing  out  of  the  acts  committed '  by  certain 
vessels.  This  limitation  was  not  obtained  without  much 
difficulty,  and  could  not  have  been  obtained  at  all,  if  we 
had  not  inserted  the  expression  of  regret  in  its  present 
place,  and  then  pointed  out  to  the  Americans  that  that 
expression  in  fact  balanced,  and  ought  to  be  accepted  as 
balancing,  the  complaints  which  they  had  made  on  the 
score  of  national  wrong,  and  that  they  ought  to  be  con- 
tent with  a  provision  that  would  entitle  them  to  bring 
forward  claims  founded  on  direct  losses  (such  as  the  sink- 
ing of  the  Hatteras)j  without  going  further.  Of  course,  it 
is  possible  that  they  may  put  forward  claims  of  greater 
extent,  as  for  instance,  claims  on  account  of  pursuing  and 
capturing  the  vessels;  but  there  is  nothing  in  the  article  to 
give  direct  colour  to  such  claims,  and  our  Counsel  will,  of 
course,  be  instructed  to  argue  that  they  are  inadmissible, 
if  they  should  be  presented."  1 

This  extract,  it  is  proper  to  observe,  is  from  a  pri- 
vate letter,  written  off-hand,  in  confidence.  Its  lan- 
guage ought  not  to  be  expected  to  exhibit  the  pre- 
cision of  an  official  state  paper.  Still,  it  marks  the 
writer  as  given  to  the  use  of  a  loose  and  vague  way 
of  expressing  what  he  means  to  communicate.  Upon 
a  hasty  reading  one  might  gain  an  impression  that 
the  Commissioners  of  the  United  States  entered 
into  a  bargain  by  which  they  agreed  to  take  "  the 
expression  of  regret"  in  exchange  for  an  abandon- 
ment of  claims  for  indirect  losses.  But  Sir  Stafford 
does  not  say  that.  He  tells  his  party  leader  that 

1  Lang:  Life  of  Northcote,  vol.  ii,  pp.  20-21. 


THE  TREATY  IN  PERIL  183 

they  "pointed  out"  to  the  Americans  what  they 
"ought"  to  accept,  but  he  does  not  say  that  the 
Americans  accepted.  It  is  to  be  observed,  moreover, 
that  he  conceives  that  the  United  States  may  bring 
forward  at  Geneva  "claims  of  greater  extent"  than 
England  thinks  were  included  in  the  Treaty,  — 
"  our  Counsel  will,  of  course,  be  instructed  to  argue  that 
they  are  inadmissible,  if  they  should  be  presented." 

Sir  Stafford,  we  may  well  believe,  was  reflecting 
the  views  of  his  colleagues  not  less  than  those  of  him- 
self ;  and  no  doubt  they  all,  in  a  vague  way,  enter- 
tained an  idea  that  they  were  going  to  hear  no  more 
of  the  indirect  claims,  because  England  had  done  the 
handsome  thing  in  expressing  her  regret  for  the 
escape  of  the  cruisers.  But  it  was  left  to  this  excel- 
lent and  amiable  statesman  to  declare  at  a  later 
stage  in  positive  terms  that  the  American  Commis- 
sioners had  waived  the  "  indirect  claims"  before  the 
signing  of  the  Treaty. 

In  the  midst  of  the  excitement  Sir  Stafford 
(18  May,  1872)  made  a  speech  at  Exeter,  in  which 
he  used  the  following  language: — 

"  I  need  not  tell  you  that  this  has  been  a  year  of  great 
anxiety  and  of  great  trouble  to  us  all  connected  with  the 
questions  raised  under  that  Washington  Treaty.  .  .  . 
We  who  were  the  Commissioners  last  year  have  felt  our- 
selves in  a  position  in  which  it  was  our  duty  to  hold  our 
tongues.  .  .  .  But  the  matter  has  now,  this  week,  passed 
into  a  stage  which  places  us  in  a  somewhat  different  posi- 
tion ...  a  position  in  which  we  may  speak  with  freedom. 


184          THE  GENEVA  TRIBUNAL 

.  .  .  Two  questions  have  been  raised,  one  the  personal 
question  as  to  what  was  the  understanding  between  the 
Commissioners  at  all  events,  and  perhaps  between  the 
two  Governments,  at  the  time  the  Treaty  was  concluded ; 
the  other,  as  to  the  general  merits  of  the  question  which 
has  been  raised  with  regard  to  what  are  called  consequen- 
tial damages,  or  the  indirect  claims.  Now,  with  regard  to 
the  personal  question,  I  will  only  say  this  —  that  we,  the 
Commissioners,  were  distinctly  responsible  for  having  repre- 
sented to  the  Government  that  we  understood  a  promise  to  be 
given  that  these  claims  were  not  to  be  put  forward,  and  were 
not  to  be  submitted  to  arbitration.  That  being  so,  we  are,  of 
course,  brought  into  painful  relations  with,  and  painful  ques- 
tions arise  between  ourselves  and,  our  American  colleagues 
upon  that  Commission."  1 

I  have  said  that  this  distinguished  statesman  had 
declared  in  positive  terms  that  the  American  Com- 
missioners had  waived  "  the  indirect  claims."  The 
reader  will  observe  that  the  speaker  says  "  We  un- 
derstood a  promise  to  be  given."  A  gentleman  of  Sir 
Stafford's  integrity  is  to  be  taken  as  meaning  by  this 
language  to  express  the  statement  that  such  a  pro- 
mise had  been  actually  made.  Sir  Stafford  unques- 
tionably believed  such  to  have  been  the  fact.  He 
had  deceived  himself. 

This  public  utterance,  while  not  a  fit  subject  for 
diplomatic  correspondence,  could  not  be  suffered  to 
pass  unchallenged  by  the  Government  of  the  United 
States.  Mr.  Fish  proceeded  to  obtain,  and  put  upon 

1  London  Times,  20  May,  1872,  quoted  In  Gen.  Arb.,  vol.  li,  pp. 
593-594. 


THE  TREATY  IN  PERIL  185 

record,  the  testimony  of  the  gentlemen  who  had  been 
American  Commissioners,  in  addition  to  what  he 
could  himself  state  upon  the  point  in  question.  With 
admirable  discretion  the  Secretary  permitted  no 
word  of  this  testimony  to  be  disclosed  in  either  coun- 
try until  after  the  indirect  claims  had  been  disposed 
of,  and  the  subject  eliminated  from  the  public 
thought. 

Under  date  of  3d  June,  1872,  Mr.  Fish  enclosed  to 
each  individual  American  member  of  the  Commis- 
sion a  copy  of  the  published  address  of  Sir  Stafford 
Northcote,  and  asked  for  a  statement  of  recollection 
as  to  this  alleged  promise.  For  himself,  Mr.  Fish 
says:  — 

"  Individually  I  never  heard  of  any  such  promise;  as 
one  of  the  American  Commissioners,  I  never  made  any 
promise,  nor  suspected  anything  of  the  kind.  I  have  no 
recollection  of  any  question  of  the  kind  being  raised, 
officially  or  unofficially." 

General  Schenck,  Mr.  Justice  Nelson,  Judge  Hoar 
and  Attorney-General  Williams,  in  emphatic  terms, 
reply  that  they  have  no  knowledge  of  any  such  pro- 
mise. It  suffices  to  quote  from  one  answer,  as  a 
sample  of  them  all:  — 

"  My  recollection  is  distinct  that  no  such  promise  was 
in  fact  made;  and  further,  that  the  only  meeting  of  the 
Commissioners  at  which  indirect  injury  or  losses  were 
mentioned  was  that  of  the  8th  of  March,  the  facts  in 
respect  to  which  are  truly  set  forth  in  the  Protocol."  1 

1  Gen.  Arb.,  vol.  ii,  p.  599.  Lord  Ripon,  in  a  speech  in  the  House 


186  THE  GENEVA  TRIBUNAL 

Sir  Stafford  brought  away  from  the  negotiations 
an  "understanding"  that  had  no  substantial  foun- 
dation. It  must  have  been  rested  by  him  entirely 
upon  a  construction  that  he  and  his  colleagues  were 
quick  to  give  to  the  text  of  the  Protocol  of  the  8th  of 
March,  the  terms  of  which  will  presently  be  exam- 
ined. A  certain  exuberance  and  gayety  of  spirit  is 
observable  hi  this  attractive  personage  which  may 
well  have  led  him  to  see  a  meaning  favorable  to 
British  interests  in  the  Protocol  that  does  not  hi  fact 
belong  to  it. 

"  Sir  Edward  Thornton  tells  me,"  writes  Mr.  Fish, 
in  his  circular  letter  of  3d  June,  to  his  former  associ- 
ates of  the  Commission,  "  that  he,  in  common  with  his 
colleagues,  understood  that  the  'indirect  claims'  were 
waived;  he  further  says  that  his  understanding  on  that 
point  was  derived  entirely  from  the  presentation  made 
of  our  complaints  and  claims  on  the  8th  of  March,  as 
set  forth  in  the  Protocol,  and  he  disclaims  any  knowledge 
or  idea  of  any  '  promise/  or  of  anything  subsequently 
said  on  the  subject.  This  is  his  personal  and  unofficial 
statement  to  me;  probably  he  might  feel  a  delicacy  to 
bear  any  public  testimony  on  the  question."  l 

The  speech  delivered  by  Sir  Stafford  at  Exeter 
may  be  dismissed  with  the  remark  that  there  was  an 
honest  misconception  on  Sir  Stafford's  part  as  to 
what  took  place  on  the  8th  of  March,  1871,  while 

of  Lords  (4  June,  1872),  denied  distinctly  that  any  such  "secret  un- 
derstanding" existed.  Ibid.,  p.  603. 

1  Fish  to  each  American  Commissioner,  Gen.  Arb.,  vol.  ii,  p;  597. 


THE  TREATY  IN  PERIL  187 

negotiating  for  the  Treaty.  The  divergence  of  opin- 
ion is  not  unaccountable.  The  proceedings  were 
going  on  between  men  of  honor  with  no  thought  or 
purpose  of  "sharp  practice."  While  each  party 
sought  its  own  advantage,  there  existed  a  mutual 
confidence  and  desire  to  reach  a  clear  and  fair  under- 
standing. Personally  the  Commissioners  of  the  two 
countries  were  on  the  best  of  terms.  Sir  Stafford  was 
much  liked  by  the  Americans.1  It  is  an  every-day 
experience  for  a  written  contract  to  be  found  suscep- 
tible of  two  different  meanings.  The  imperfection  of 
instruments  that  have  been  reduced  to  writing  is  the 
more  striking  when  we  see  leading  statesmen  of  two 
great  powers  diametrically  opposed  upon  a  single 
question  of  fact  as  to  the  record  of  what  was  agreed 
upon  by  picked  men  trained  in  the  use  of  precise 
terms.2 

1  It  is  an  interesting  circumstance  that  a  few  years  afterward  a 
younger  son  of  Lord  Iddesleigh  (Sir  Stafford  Northcote)  was  mar- 
ried to  Edith,  youngest  daughter  of  Mr.  Fish. 

*  Fresh  evidence  of  the  illusory  nature  of  Sir  Stafford's  recollec- 
tions has  lately  come  to  light.  There  will  be  found  in  Fitzmaurice's 
Life  of  Lord  Granville  (published  in  1905)  an  extract  from  a  letter, 
written  by  Sir  Stafford  to  Lord  Granville,  7  April,  1872,  at  a  date 
when  it  had  become  vitally  important  for  his  countrymen  to  learn 
exactly  what  the  British  Commissioners  the  year  before  had  accom- 
plished at  Washington.  The  reader  will  be  impressed  anew  with  the 
lack  of  precision  that  attends  Sir  Stafford's  attempt  at  an  explana- 
tion. 

"It  was  more  than  once  urged  on  us  by  the  American  Commis- 
sioners that  the  Senate,  having  taken  the  strong  course  of  rejecting 
the  Clarendon-Johnson  Treaty,  would  have  great  difficulty  in  now 
accepting  a  treaty  precisely  similar,  or  similar  in  a  very  high  degree, 


188          THE  GENEVA  TRIBUNAL 

It  remains  to  weigh  the  reasons  assigned  by  Lord 
Granville  for  his  assertion  that  under  the  Protocol 
of  8th  March,  and  the  wording  of  the  Treaty,  the 

to  that  which  they  had  previously  disapproved.  The  language  of 
the  Treaty  was  studiously  chosen  even  in  small  and  unimportant 
particulars,  so  as  to  make  it  as  different  as  possible  from  its  forerun- 
ner. Most  probably  the  insertion  of  any  words  expressly  and  in 
terms  barring  the  indirect  claims  would  have  excited  the  jealousy  of 
the  Senate,  as  seeming  directly  to  reverse  their  former  vote. 

"  At  all  events,  we  believed  that  such  was  the  impression  of  the 
American  Commissioners,  and  we  considered  that  they,  whom  we 
took  to  be  thoroughly  in  earnest,  were  the  best  judges  of  what  would 
be  fatal  to  the  adoption  of  the  Treaty  by  the  Senate.  We  abstained, 
therefore,  from  embarrassing  them  by  pressing  any  such  words, 
contenting  ourselves  with  such  phraseology  as  we  thought  would 
effectually,  though  unostentatiously,  bar  the  claims  in  question. 

"  I  still  think  that  the  language  is  sufficient  for  that  purpose,  and 
I  should  not  fear  to  submit  it  to  the  judgment  of  any  competent 
tribunal.  But  to  do  so  would  be  to  admit  that,  if  the  tribunal  de- 
cided against  us,  we  must  be  bound  by  its  decision;  and  as  we  cer- 
tainly should  refuse  to  be  so  bound,  we  ought  not  to  allow  the  ques- 
tion to  be  submitted. 

"  I  think  we  ought  to  rely  upon  the  argument  from  intention.  But 
in  urging  this  argument,  I  think  we  ought  frankly  to  admit  that  it 
is  possible  that  the  Americans  may  have  taken  throughout  a  dif- 
ferent view  of  the  proceedings  from  that  which  we  took  of  them, 
and  that  they  may  have  mistaken  the  motives  of  our  reticence,  and 
we  the  motives  of  theirs.  It  was  a  misfortune  that  we  did  not  keep 
regular  protocols  de  die  in  diem.  Had  we  done  so,  the  present  mis- 
understanding could  not  have  arisen,  though  perhaps  the  Treaty 
would  not  have  been  concluded,  or  if  concluded,  would  not  have 
passed  the  Senate.  It  was,  I  think,  an  error  of  judgment  for  which 
we,  the  Commissioners,  were  certainly  responsible.  But,  had  we 
rejected  the  suggestion  made  by  the  American  Commissioners,  and 
had  we  insisted  on  regular  protocols  against  their  opinion,  we  should 
have  been  told  that  we  had  upset  the  chance  of  a  settlement  by  our 


THE  TREATY  IN  PERIL  189 

United  States  had  no  right  to  ask  the  Tribunal  of 
Arbitration  to  make  a  ruling  upon  the  national,  or 
indirect,  claims.  These  reasons  are  set  out  in  his 
Lordship 's  note  and  accompanying  memorandum 
of  20th  March,  1872,  a  state  paper  that  bears  the 
marks  of  a  specially  careful  preparation.1  Briefly 
stated,  they  amount  to  the  following  proposi- 
tions:— 

(1)  The  term  "Alabama  Claims  "  had  acquired  the 
meaning  of  claims  for  the  capture  or  destruction  of 
the  property  of  individual  citizens,  and  of  such 
claims  only. 

(2)  The  agreement  to  refer  to  arbitration  was  "  an 
amicable  settlement,"  and  the  concession  made  by 
Great  Britain  justified  her  in  treating  such  agree- 
ment as  amounting  to  a  waiver  of  the  indirect 
claims  by  the  United  States.   The  Treaty  is  called 
an  amicable  settlement,  not  merely  in  relation  to  the 
"Alabama  Claims,"  but  as  an  entirety. 

(3)  The  debate  in  the  House  of  Lords  (12  June, 
1871)  on  the  motion  for  an  address  to  the  Queen, 
praying  her  to  refuse  to  ratify  the  Treaty,  showed 
that  the  Lords  were  assured  that  the  indirect  claims 
had  disappeared.  The  American  Minister  was  pre- 
sent at  this  debate,  and  a  full  report  was  communi- 
cated to  the  Government  of  the  United  States.  This 

own  pedantry,  and  by  our  folly  in  refusing  to  listen  to  those  who 
knew  the  best  real  mode  of  effecting  one."  Life  of  Earl  Granvitte, 
vol.  ii,  pp.  92-93. 

1  Gen.  Arb.,  vol.  ii,  pp.  436-459. 


190         THE  GENEVA  TRIBUNAL 

interpretation  was  not  challenged  by  the  statesmen 
or  by  the  public  press  of  the  United  States. 

(4)  Great  Britain  cannot  be  supposed  to  have 
bound  herself  to  invite  other  countries  to  observe 
the  Rules  of  Article  VI,  if  they  are  to  entail  upon  a 
neutral  an  unlimited  liability,  and  involve  the  ruin 
of  a  whole  country. 

In  reply  to  these  points  seriatim,  it  may  be  stated : 
(1)  To  the  point  first  named  the  answer  is  obvious. 
The  United  States  had  a  right  to  understand  by 
the  term  "Alabama  Claims"  any  and  all  claims,  of 
whatsoever  description,  that  they  could  persuade  the 
Tribunal  of  Arbitration  to  say  that  they  had,  for 
losses  growing  out  of  the  acts  of  the  vessels.  All 
claims  must  necessarily  embrace  every  kind  of  claim. 
Then*  generic  name  does  not  confine  the  claims  to  a 
special  class  or  classes.  Besides,  it  is  the  province  of 
the  Arbitrators  themselves  to  decide  what  claims, 
under  the  Treaty,  are  properly  before  them.  They 
are  empowered  to  pass  upon  the  question  of  the  ex- 
tent of  their  own  jurisdiction.  Mr.  Fish  makes  it 
plain  that  claims  for  national  or  indirect  losses  were 
notified  to  Great  Britain  at  an  earlier  date  than  that 
of  the  appointment  of  the  Joint  High  Commission- 
ers. As  an  instance  in  proof,  he  refers  to  Lord  Clar- 
endon's letter  to  Mr.  Thornton,  8  November,  1869, 
in  which  his  Lordship  says  that  he  had  been 
"  officially  informed  by  Mr.  Motley  that  while  the  Presi- 
dent at  that  time  abstained  from  pronouncing  on  the  in- 
demnities due  for  the  destruction  of  private  property,  he 


THE  TREATY  IN  PERIL  191 

also  abstained  from  speaking  '  of  the  reparation  which  he 
thinks  due  by  the  British  Government  for  the  larger 
account  of  the  vast  national  injuries  it  has  inflicted  on  the 
United  States.7"1 

If  these  claims  had  never  been  "notified"  to 
Great  Britain,  why — pertinently  asks  Mr.  Fish — 
so  much  stress  laid  upon  their  assumed  relinquish- 
ment? 

(2)  The  Treaty  provision  for  reaching  a  settlement 
is  not  of  itself  "an  amicable  settlement."  As  Mr. 
Fish  cogently  remarks :  — 

"  The  differences  between  the  two  stand  out  clear  and 
broad.  One  would  have  closed  up,  at  once  and  forever, 
the  long-standing  controversy;  the  other  makes  necessary 
the  interposition  of  friendly  Governments,  a  prolonged, 
disagreeable,  and  expensive  litigation  with  a  powerful  na- 
tion, carried  on  at  a  great  distance  from  the  seat  of  this 
Government,  and  under  great  disadvantages;  and,  more 
than  all,  it  compels  the  re-appearance  of  events  and  of 
facts,  for  the  keeping  of  which  in  lifeless  obscurity  the 
United  States  were  willing  to  sacrifice  much,  as  they  indi- 
cated in  their  proffer  to  accept  a  gross  sum  in  satisfaction 
of  all  claims.  .  .  . 

"  The  offer  of  this  Government  to  withhold  any  part  of 
its  demand  expired  and  ceased  to  exist  when  the  accept- 
ance of  the  proposal  which  contained  the  offer  was  refused. 
It  was  never  offered  except  in  connection  with  the  pro- 
posal that  the  Joint  High  Commission  should  agree  upon 
a  gross  sum  to  be  paid  in  satisfaction  of  all  the  claims, 
and  then  it  was  repelled.  It  was  never  again  suggested 
from  any  quarter."  2 

i  Gen.  Arb.,  vol.  ii,  p.  462.  «  Ibid.,  p.  469. 


192  THE  GENEVA  TRIBUNAL 

There  could  have  been  no  mistake  as  to  the  mean- 
ing of  the  words  employed.  Bancroft  Davis  says,  hi 
a  letter  to  Mr.  Fish  of  19th  January,  1872:  - 

"  I  remember  distinctly  that,  at  the  meeting  of  March 
8th,  when  your  statement  was  read,  Lord  de  Grey  asked 
what  was  meant  by  an  amicable  settlement  —  and  you 
replied:  'Payment.'"  l 

Nothing  can  be  clearer,  it  would  seem,  than  the 
fact  that  the  American  Commissioners  did  not  waive 
the  claim  for  national  injuries.  The  testimony  of 
Mr.  Fish  and  his  colleagues  is  incontestable.  Nor 
did  the  American  Commissioners  do  or  say  anything 
that  could  lead  a  single  British  Commissioner  to 
understand  that  they  had  such  a  waiver  in  mind 
upon  the  execution  of  the  Treaty.  The  belief  enter- 
tained by  the  British  Commissioners,  that  the  in- 
direct claims  had  been  waived  before  the  Treaty 
was  concluded,  grew  out  of  a  misconception  on  the 
part  of  Sir  Stafford  Northcote  and  his  associates. 

(3)  An  argument  based  upon  speeches  made  in  the 
House  of  Lords,  upon  an  occasion  when  the  Ameri- 
can Minister  was  present,  is,  of  course,  entitled  to 
little  weight.  Notice  could  not  be  taken  by  the  Gov- 
ernment of  the  United  States  of  political  debates  in 
Parliament,  in  which  interpretation  is  put  upon  the 
language  of  a  treaty.  The  same  argument  might 
be  made  before  the  Tribunal,  at  Geneva;  and  the 
United  States  would  then  and  there  exercise  an  op- 
portunity to  reply,  should  it  seem  advisable. 

1  MS.  Archives,  Department  of  State. 


THE  TREATY  JN  PERIL  193 

(4)  The  assumption  that  the  Arbitrators  would  be 
likely  to  cast  Great  Britain  in  enormous  damages 
was  in  direct  contradiction  to  what  must  have  been 
the  judgment  of  the  best  informed  English  states- 
men. They  knew  well  enough  that  the  United  States 
did  not  expect  a  favorable  ruling;  and  did  not  want 
a  finding  that  would  bear  onerously  upon  a  neutral 
nation  in  tune  of  war.  What  the  United  States  ex- 
pected and  desired  (there  could  be  no  secret  about 
it)  was  a  determinative  judgment  by  the  Tribunal 
—  that  the  indirect  claims  were  not  collectible. 
They  would  thus  be  forever  disposed  of.  The  United 
States,  having  brought  them  forward  for  the  very 
purpose  of  getting  rid  of  them,  could  not  withdraw 
them  and  leave  them  unsettled. 

"  I  had  an  interview  with  Mr.  Adams,  in  which  at  the 
request  of  Mr.  Fish  and  of  the  President  I  conveyed  to 
him  the  information  that  neither  the  President  nor  the 
Secretary  of  State  desired  to  have  the  indirect  claims  sus- 
tained; and  that  they  had  been  put  in  the  Case  because 
the  Chairman  of  the  Senate  Committee  on  Foreign  Rela- 
tions had  officially  put  them  forward  in  such  a  way  that  it 
was  thought  that  the  Tribunal  must  be  asked  to  pass  on 
them.  The  action  of  the  Tribunal  was  acceptable  to  the 
United  States."  1 

Just  before  Mr.  Adams  was  to  sail  from  Boston, 
Mr.  Boutwell,  then  Secretary  of  the  Treasury,  called 
on  him,  at  the  request  of  Mr.  Fish,  to  communicate 
an  expression  of  further  wishes  of  the  Government. 

1  MS.  Letter  of  Bancroft  Davis  to  Hackett,  10  July,  1902. 


194          THE  GENEVA  TRIBUNAL 

Says  Mr.  Adams:  — 

"  Mr.  Boutwell  handed  over  to  me  a  packet  from  Gov- 
ernor Fish,  and  said  it  was  the  desire  of  the  Government, 
if  I  could  find  it  consistent  with  what  they  understood  to 
be  my  views  of  the  question  of  indirect  damages,  that  I 
would  make  such  intimation  of  them  to  persons  of  author- 
ity in  London,  as  might  relieve  them  of  the  difficulty 
which  had  been  occasioned  by  them.  I  told  him  of  my 
conversation  with  the  Marquis  of  Ripon,  in  which  I  had 
assumed  the  heavy  responsibility  of  assuring  him  that  the 
Government  would  not  press  them.  I  was  glad  now  to 
find  that  I  had  not  been  mistaken.  I  should  cheerfully  do 
all  in  my  power  to  confirm  the  impression,  consistently 
with  my  own  position."  l 

By  treaty  stipulation  it  had  been  agreed  that  all 
claims  should  be  referred.  If  this  particular  class  of 
claims  (however  lacking  in  validity)  were  meant  to 
be  excluded,  the  Treaty  would  have  said  so.  Obvi- 
ously it  was  for  the  Tribunal  itself  to  pass  upon  their 
validity;  and  both  sides  entertained  the  opinion  that 
they  did  not  form  a  good  foundation  for  damages,  — 
a  conclusion  promptly  reached  by  the  Arbitrators, 
upon  the  subject-matter  being  brought  to  their  at- 
tention. 

The  brief,  concluding  section  of  the  Counter-Case 
of  the  United  States  (the  ninth)  treats  of  damages. 
It  was  written  by  Mr.  Davis.  Its  tone  is  moderate 

1  George  Sewall  Boutwell:  Reminiscences  of  Sixty  Years  inPw6- 
lic  Affairs,  vol.  ii,  p.  201. 


THE  TREATY  IN  PERIL  195 

and  dignified.  It  declares  it  to  be  the  expectation  of 
the  United  States  that  the  Tribunal  "  will  hold  itself 
bound  by  such  reasonable  and  established  rules  of 
law  regarding  the  relation  of  cause  and  effect,  as  it 
may  assume  that  the  parties  had  in  view  when  they 
entered  into  their  engagement  to  make  this  refer- 
ence." It  expressly  states  that  it  is  not  contem- 
plated that  the  rule  would  make  a  course  of  honest 
neutrality  unduly  burdensome.1  In  the  light  of  what 
the  reader  now  knows  of  the  agitation  in  England,  it 
is  interesting  to  note  that  Mr.  Davis  writes  to  Mr. 
Fish  (5  April,  1872)  shortly  before  the  date  fixed 
for  the  exchange  of  the  Counter-Cases:  — 

"  Some  weeks  since  I  had  suggested  to  the  Counsel  that, 
as  the  differences  which  have  apparently  arisen  in  carry- 
ing out  the  Treaty  seemed  to  be  founded  on  a  dread  in 
England  of  a  hostile  award,  under  some  unknown  rule  of 
damages,  for  a  greater  amount  than  they  could  pay,  per- 
haps the  lawyers  could  arrange  the  matter,  without  polit- 
ical action  of  the  Government,  by  agreeing  that  as  the 
Treaty  was  silent  concerning  the  law  by  which  damages 
were  to  be  measured,  it  might  be  understood  that  on  our 
side  a  proposition  would  be  accepted  from  the  lawyers 
on  the  other  side,  that  the  Tribunal  should  be  governed 
by  English  or  American  law,  in  measuring  the  damages. 
Last  week,  after  full  consideration,  they  decided  that 
they  would  prefer  that  something  should  appear  in  the 
Counter-Case  on  the  subject.  I,  therefore,  prepared  the 
ninth  section,  and  it  was  accepted  by  them  as  it  stands. 
My  own  preferences  would  have  been  to  have  had  the 
i  Gen.  Art.,  vol.  i,  pp.  441-442. 


196          THE  GENEVA  TRIBUNAL 

matter  arranged  by  counsel  on  the  proposition  of  Sir 
Roundell  Palmer."  1 

The  Agent  of  the  United  States  was  himself  an  ex- 
cellent lawyer.  To  no  more  competent  hand  than 
his  could  have  been  entrusted  the  office  of  penning 
the  final  word,  at  this  troublesome  juncture,  upon 
the  vexed  question  of  damages.  The  situation  was 
not  a  happy  one,  but  it  was  inevitable.  In  time  of 
war  the  United  States  is  usually  a  neutral.  There  is 
an  extensive  coast-line,  not  easily  guarded  for  the 
maintenance  of  strict  neutrality.  It  was  for  the  in- 
terest of  the  United  States  at  Geneva  to  see  to  it 
that  any  rule  of  damages  receiving  the  sanction  of 
the  Tribunal  should  not  be  a  menace  to  neutrals,  or 
expose  them  to  extraordinary  risks.  Consequently 
the  complaining  party  here,  while  laying  before  the 
Tribunal  a  statement  of  national  (or  indirect)  losses 
to  a  very  large  amount,  was  not  really  desirous  of 
compelling  its  opponent  to  make  a  payment  there- 
for. Great  Britain  was  perfectly  well  aware  that 
upon  the  whole  case  no  extraordinarily  great  sum 
was  either  expected  or  desired.  Hence  a  plain  duty 
rested  upon  English  statesmen  to  quiet  their  people 
and  explain  to  them  how  the  question  of  the  indi- 
rect claims  could  go  before  the  Tribunal  with  no  loss 
of  dignity  on  England's  part,  and  no  danger  what- 
ever of  her  being  compelled  to  pay  an  enormous 
amount  of  money. 

At  the  same  time,  the  Government  of  the  United 

1  MS.  Archives,  Department  of  State. 


THE  TREATY  IN  PERIL  197 

States,  following  the  provision  of  the  Treaty  that  all 
claims  be  referred,  had  asked  the  Tribunal  to  pass 
upon  the  question  of  this  larger  class  of  alleged  dam- 
ages; and  the  President  could  not  withdraw  the 
request.  The  real  difficulty,  though  not  clearly  ap- 
prehended by  the  average  mind,  lay  in  the  nature 
of  any  and  all  claims  for  damages,  based  upon  the 
alleged  infliction  of  a  wrong.  In  English  and  Amer- 
ican law,  a  principle  of  damages  in  this  field  does 
not  exist.  That  is  to  say,  there  is  no  settled  princi- 
ple in  the  sense  that  a  rule,  with  any  degree  of  ex- 
actitude, can  be  applied  to  the  redress  of  an  injury 
as  between  persons,  not  to  speak  of  nations.  To  be 
sure,  we  are  accustomed  to  consider  the  doctrine 
established,  that  in  our  efforts  to  arrive  at  some  sort 
of  an  estimate  of  the  compensation  to  be  awarded 
to  the  party  injured  in  actions  of  tort,  —  direct, 
and  not  remote  or  consequential,  results  are  to  be 
regarded.  The  law  frankly  admits  that  it  can  afford 
a  reparation  that  is  only  approximate.  How  to 
measure  that  reparation  is  the  problem;  and  it  is  a 
problem  that  must  be  pronounced  practically  insol- 
uble. After  all,  the  whole  matter  has  to  be  left  to  the 
good  sense  of  a  jury, —  to  guess  at  it. * 

That  an  immediate  and  direct  effect  of  the  escape 
of  the  Confederate  cruisers  from  the  ports  of  Great 

1  Upon  my  coming  to  the  bar,  I  happened  one  day  to  hear  Theron 
Metcalf  (a  great  common-law  jurist,  who  had  then  but  recently  left 
the  bench  of  the  highest  court  of  Massachusetts)  say,  in  the  Social 
Law  Library,  Boston,  that  he  had  forty  years  ago  given  up  trying  to 
find  out  what  is  the  law  of  damages. 


198  THE  GENEVA  TRIBUNAL 

Britain  was  to  destroy  the  American  carrying-trade, 
and  thus  inflict  an  injury  of  untold  magnitude  upon 
the  people  of  the  United  States,  cannot  be  gainsaid. 
It  is  obvious  that  England  profited  largely  by  this 
destruction.  There  would  seem  to  be  a  measure  of 
abstract  justice  in  holding  England  responsible  for 
losses  of  this  character,  caused  by  her  culpable 
neglect.  But  the  moment  one  undertakes  to  reduce 
this  theoretical  conception  to  a  concrete  rule,  he  sees 
how  it  refuses  to  take  on  a  practical  shape.  Because 
you  cannot  draw  the  line,  you  are  bound  to  conclude 
that,  grievous  as  may  be  the  cause  for  complaint, 
you  will  have  to  abandon  any  expectation  of  being 
able  to  determine  amounts.  In  a  word,  you  must  be 
content  with  the  reflection  that  the  nature  of  the 
case  does  not  admit  of  doing  approximate  —  much 
less  exact  —  justice. 

England,  as  we  have  seen,  was  advised  that  the 
United  States  desired  nothing  to  be  awarded  as 
national  or  indirect  damages,  but  only  that  the 
Tribunal  should  in  effect  adjudge  that  the  neglect 
of  a  neutral  nation  in  time  of  war  should  not  be 
visited  with  this  species  of  penalty,  —  so  to  speak. 
Her  uneasiness  and  alarm  are  to  be  accounted  for 
only  because  of  a  fear  that  the  neutral  Arbitrators 
might  depart  from  the  views  entertained  by  both 
parties,  and  adopt  some  new  theory,  to  the  unspeak- 
able detriment  of  the  offending  nation.  Such  a  fear 
was  groundless.  No  wonder  that  Mr.  Davis  could 
write  from  Berlin  (whither  he  had  gone  on  a  flying 


THE  TREATY  IN  PERIL  199 

trip)  17  May,  1872,  to  Mr.  Fish  that  the  impression 
in  Europe  is  that  England  is  not  sincere  in  her  oppo- 
sition to  the  indirect  claims. 

"The  correspondent  of  the  Prussian  Cross  Gazette 
says  it  is  believed  in  England  that  at  least  two  of  the 
neutral  Arbitrators  are  disposed  to  regard  with  favor  the 
claims  of  the  United  States.  Whether  this  is  or  is  not 
true,  I  cannot  say.  If  it  is,  it  will  explain  a  request  which 
Lord  Tenterden  made  to  me  at  Geneva,  in  December,  to 
take  steps  for  the  appointment  of  new  arbitrators,  in  the 
place  of  Count  Sclopis,  Mr.  Staempfli,  and  Baron  d'lta- 
juba,  on  the  ground  that  these  gentlemen  did  not  speak 
English.  I  wrote  you  at  the  time  that  the  request  was 
refused  as  soon  as  made.  It  will  also  serve  to  explain 
rumors  which  have  been  floating  about  London,  and 
which  I  believe  to  have  some  foundation,  that  the  British 
Arbitrator  has  expressed  himself  with  great  freedom  in 
terms  hostile  to  the  Tribunal,  and  favorable  to  a  rupture 
of  the  Treaty."  * 

The  two  Agents,  upon  meeting  at  Geneva, 
15  April,  to  exchange  the  Counter-Cases,  naturally 
had  something  to  say  to  each  other,  in  unofficial 
terms,  as  to  the  outlook  for  the  Treaty.  Lord  Ten- 
terden most  earnestly  desired  the  success  of  i  the 
Arbitration.  Acting  under  instructions,  he  lodged 
with  [the  Secretary  of  the  Tribunal  a  note  of  the 
announcement  made,  2  February,  by  the  British 
Government  of  their  position  regarding  the  in- 
direct claims.  This  action  he  took,  in  order  that 

1  MS.  Archives,  Department  of  State. 


200  THE  GENEVA  TRIBUNAL 

the  filing  of  the  Counter-Case  by  the  British  Gov- 
ernment might  not  be  [treated  as  a  waiver  of  that 
position. 

Lord  Tenterden's  manner  was  both  frank  and 
conciliatory.  He  and  Mr.  Davis,  as  we  have  already 
seen,  had  become  good  friends,  who  could  talk  to 
each  other  if  need  be  without  reserve.  To  a  remark 
by  the  latter  that  he  had  understood  that  the  Lord 
Chief  Justice  was  opposed  to  proceeding  farther 
with  the  business,  Tenterden  replied  that  he  be- 
lieved the  story  to  be  "club-talk."  He  assured  Mr. 
Davis  that  the  last  tune  he  had  talked  with  the  Lord 
Chief  Justice,  Sir  Alexander  had  expressed  the 
strongest  wish  that  the  Arbitration  should  go  on, 
saying  that  he  had  looked  forward  to  closing  a  long 
career  (in  which  he  had  got  everything  that  he  could 
wish)  by  a  judgment  hi  this  case  that  was  to  hand 
his  name  down.1 

It  was  fortunate  for  both  countries  that  the  two 

1  MS.  Archives,  Department  of  State.  The  reader  has  already  been 
cited  to  an  incident  occurring  in  London  society  which  shows 
that  privately  the  Lord  Chief  Justice  fully  recognized  the  strength 
of  the  position  taken  in  the  American  Case.  The  source  from  which 
a  knowledge  of  this  remark  of  Sir  Alexander  Cockburn  has  been  de- 
rived, is  entitled,  in  my  judgment,  to  implicit  faith.  Ante,  p.  148, 
note  2. 

"I  confess  that  for  myself  I  had  never  expected  to  win  on  the 
Alabama,  was  doubtful  of  the  Florida  (which  depends  on  a  technical 
definition  of  commissioning  and  'deposit  of  offence')*  and,  as  I  told 
you  some  time  ago,  had  fears  for  the  Shenandoah  on  account  of  the 
recruiting  at  Melbourne."  Tenterden  to  Granville,  8  September, 
1871,  Fitzmaurice:  Life  of  Earl  GranviUe,  vol.  ii,  p.  105. 


THE  TREATY  IN  PERIL  201 

Agents  could  fully  trust  each  other,  and  that  ani- 
mated by  a  common  purpose  they  could  work  to- 
gether in  perfect  harmony. 
Says  Mr.  Davis:  — 

"  After  disclaiming  on  each  side  the  right  to  speak  offi- 
cially, and  after  asserting  that  what  each  might  say  to  the 
other  was  purely  personal,  and  after  considering  various 
plans  for  overcoming  the  dead-lock  which  had  arisen, 
Lord  Tenterden  proposed,  and  I  agreed  to  it,  that  we 
should  each  write  unofficially  to  our  chiefs  at  home,  sug- 
gesting whether  it  might  not  be  possible  '  to  have  the 
Arbitrators  come  together  of  their  own  motion  before  the 
15th  of  June,  for  the  avowed  purpose  of  considering,  in 
advance  of  argument,  the  general  question  of  liability  for 
indirect  damages/  I  so  wrote  to  Mr.  Fish,  and  I  presume 
he  did  the  same  to  Lord  Granville."  l 

Henceforward  the  story  of  what  was  going  on  be- 
tween the  two  Governments,  down  to  the  date  of  the 
meeting  of  the  Arbitrators  (15  June,  1872)  must  be 
told  in  the  fewest  words.  Attempts  were  made  to 
come  together  and  save  the  Treaty.  The  Legations 
at  London  and  at  Washington  were  kept  busy  at  all 
hours  of  the  day  and  night.  The  interchange  of 
notes  and  telegrams  was  incessant.  More  than  once 
General  Schenck  was  called  from  his  bed  to  decipher 
a  cablegram,  and  hurry  a  copy  of  its  contents  to 
Lord  Granville.  The  latter  —  one  of  the  most 
amiable  of  men  —  was  frequently  closeted  with  the 

»  Mr.  Fish  and  the  Alabama  Claims,  p,  97. 


202  THE  GENEVA  TRIBUNAL 

General,  both  hoping  that  the  tangled  skein  some- 
how could  be  unravelled.1 

Mr.  Fish  and  Lord  Granville  were  each  compelled 
to  recognize  the  condition  of  home  politics  under 
which  this  divergence  had  arisen,  and  under  which  it 
continued.  The  expectations  of  the  people  in  one 
country,  as  well  as  in  the  other,  had  to  be  met  and 
most  scrupulously  considered.  It  was  the  year  of  a 
Presidential  election,  and  General  Grant  was  a  can- 
didate for  reelection.  In  England,  the  political  op- 
ponents of  Mr.  Gladstone  were  not  unwilling  to  see 
him  put  into  an  embarrassing  position,  though  it  is 
but  simple  justice  to  say  of  them  that  they  appear 
to  have  throughout  acted  in  an  honorable  and  pat- 
riotic manner. 

Lord  John  Russell,  whose  hostility  to  the  Treaty 
had  been  undisguised  from  the  first,  had  given  notice 

1  "I  send  you  to-day  Lord  Granville's  voluminous  reply,  with  the 
accompanying  printed  'Memorandum.'  It  lost  us  some  sleep,  not 
through  the  power  of  the  argument,  but  in  getting  copies  made  in 
time  to  hurry  everything  away  by  the  mail  of  yesterday."  MS.  Let- 
ter, Schenck  to  Davis,  22  March,  1872,  Archives,  Dept.  of  State. 

At  times  the  prospect  was  gloomy  indeed.  One  night,  or  rather 
early  one  morning,  General  Schenck  came  home  nearly  worn-out 
and  wholly  dispirited.  He  threw  his  hat  down  and  exclaimed, "  It  is 
all  over.  This  is  the  end  of  the  Treaty."  "Very  well,  sir,"  replied 
Woodhull,  his  ardent  young  secretary.  "We  shall  fight  Great  Brit- 
ain; and,  thank  God,  we  are  ready  for  it! " 

Among  the  many  callers  at  the  Legation  there  appeared  one  day 
a  figure  in  a  long  cloak  —  a  fine,  intellectual  face.  The  visitor  had 
an  idea  or  two  to  communicate  as  to  the  means  by  which  peace 
could  be  preserved  between  the  two  countries.  It  was  the  poet 
laureate  —  Alfred  Tennyson. 


THE  TREATY  IN  PERIL  203 

(22  April,  1872)  that  he  would  move  an  address 
praying  Her  Majesty  to  give  instructions  that  all 
proceedings  before  the  Geneva  Arbitrators  be  sus- 
pended until  the  claims  included  in  the  Case  of  the 
United  States  —  "which  are  understood  on  the  part 
of  Her  Majesty  not  to  be  within  the  province  of  the 
Arbitrators  —  be  withdrawn."  1  With  all  the  seri- 
ous consequences  that  threatened  to  follow  upon  the 
rupture  of  the  Treaty,  it  must  be  admitted  that 
what  hindered  the  two  Governments  from  acting 
together  really  amounted  to  little  else  than  a  punc- 
tilio. 

After  fruitless  effort  to  reach  a  result  by  the  cus- 
tomary diplomatic  means,  Great  Britain  suggested 
that  the  Treaty  be  amended,  so  as  to  remove  the 
subject  of  the  indirect  claims  from  the  field  of  con- 
troversy. It  was  proposed,  in  substance,  that  the 
United  States  should  make  no  claim  before  the  Tri- 
bunal in  respect  to  indirect  losses,  while  both  Gov- 
ernments should  agree  that  their  conduct  in  future 
should  be  guided  by  the  principle  that  the  national 
losses  stated  hi  the  Case  should  not  be  admitted  as 
growing  out  of  the  acts  committed  by  vessels  by 
reason  of  the  want  of  due  diligence  in  the  premises 
in  the  performance  of  neutral  obligations. 

The  time  was  late  in  the  session,  and  Congress 
was  crowded  with  business.  Both  Houses  had  voted 
that  they  would  adjourn  on  the  29th  of  May.  But 
the  urgency  of  the  situation  demanded  that  at  least 

1  Fitzmaurice:  Life  of  Granvitte,  vol.  ii,  p.  95. 


204  THE  GENEVA  TRIBUNAL 

the  proposed  plan  be  tried.  Accordingly,  the  Gov- 
ernment of  the  United  States  accepted  the  proposal. 

There  was  an  earnest  effort  made  at  Washington 
to  carry  to  a  successful  result  this  eleventh-hour 
project.  The  majority  (Republican)  members  of  the 
Senate  Committee  on  Foreign  Relations  met  at 
the  White  House  —  an  unusual  proceeding  —  and  it 
became  fairly  well  known  what  kind  of  an  amend- 
ment could  be  passed  through  the  Senate.  Unfor- 
tunately, an  enterprising  journal  of  New  York  City  l 
had  succeeded  in  laying  hands  upon  a  copy  of  cer- 
tain confidential  documents  sent  by  the  President 
to  the  Senate  on  the  13th  of  May,  and  it  published 
the  text  in  full.  The  complications  thus  engendered 
brought  about  the  defeat  of  the  undertaking. 

A  debate  was  carried  on  for  a  part  of  four  days, 
in  secret  sessions  of  the  Senate,  upon  the  language  of 
the  Article,  as  to  which  the  two  Governments  had 
come  to  an  agreement.  A  proposal  of  so  vital  an 
importance  as  the  formulation  of  terms  to  be  ad- 
hered to  in  the  future  by  the  United  States,  in  the 
event  of  war  between  other  powers,  required  most 
rigid  scrutiny,  as  well  as  a  full  and  deliberate  dis- 
cussion. Finally,  the  Senate  consented  to  the  pro- 
posed amendment,  after  changing  the  text,  not 
extensively,  but  in  a  material  point.  The  change 
proved  fatal.  The  Government  of  Great  Britain  did 
not  agree;  and  there  was  no  time  left  for  further  con- 
sideration by  the  Senate.  In  fact,  the  Senate  would 

i  The  New  York  Herald. 


THE  TREATY  IN  PERIL  205 

not  upon  any  account  have  receded  from  its  posi- 
tion.1 

The  question  came  under  discussion  whether  the 
Arguments  must,  under  the  terms  of  the  Treaty,  be 
submitted  to  the  Tribunal  15  June,  or  whether  a 
long  adjournment  could  be  taken,  with  a  view  of 
filing  the  Arguments  at  a  later  day.  On  the  8th  of 
June,  only  a  week  before  the  fated  day,  Lord  Gran- 
ville  is  writing  to  General  Schenck,  and  suggesting 
that  an  agreement  on  the  Supplementary  Article 
to  the  Treaty  might  be  arrived  at,  if  sufficient  time 
were  given  for  discussion.  Thus  everything  was 
uncertain,  with  only  a  dim  hope  that  the  Arbitration 
would  go  on.  Upon  the  eve  of  leaving  Paris,  no  one 
could  foretell  what  was  likely  to  happen.2 

General  Gushing,  Mr.  Evarts,  and  Mr.  Waite, 
together  with  Mr.  Beaman  and  the  Secretaries, 
started  from  Paris  in  the  forenoon  of  Thursday,  the 
13th,  going  by  way  of  Dijon  to  Geneva.  We  dined 
at  Dijon;  and  then  pushed  on  as  far  as  Macon,  a 
fine  old  town,  where  we  secured  comfortable  lodg- 
ings. We  were  astir  betimes  the  next  morning;  when 
the  sun  had  been  up  for  two  hours,  we  were  off.  We 
arrived  at  Geneva  about  eleven  o'clock  hi  the  fore- 

1  Gen.  Arb.j  vol.  ii,  p.  526,  where  the  reader  will  find  the  text  of 
the  proposed  article  in  its  original  form,  and  as  amended  by  the 
Senate. 

8  For  myself  I  hesitated  about  taking  the  trip,  It  being  the  gen- 
eral expectation  that  our  party  would  all  be  back  at  Paris  within  a 
very  few  days.  At  the  last  moment  I  decided  to  go. 


206          THE  GENEVA  TRIBUNAL 

noon,  to  learn  that  the  Arbitrators  and  the  English 
party  were  already  on  the  ground. 

No  one  was  likely  soon  to  forget  that  period  of 
suspense.  We  had  come,  Agent,  Counsel,  and  a 
little  band  of  young  helpers  —  one  and  all  girt  for 
the  contest.  But  who  could  declare  that  the  trum- 
pet would  sound  for  the  fray? 


CHAPTER  VII 

THE  TKEATY  SAVED — THE  ARBITRATION  GOES  ON 

WHEN  a  boy  I  from  my  reading  had  somehow  gained 
an  idea  that  the  scenery  of  Switzerland  was  the 
exclusive  property  of  Englishmen.  Those  were  the 
early  days  of  Alpine  climbing,  and  of  the  Albert 
Smith  lecture,  —  long  before  the  enormous  tide  of 
travel  had  set  in  from  this  side  of  the  Atlantic,  and 
before  the  "  Playground  of  Europe  "  had  become  as 
familiar  to  Americans  as  Broadway  or  Pennsylvania 
Avenue.  My  youthful  delusion,  let  me  add,  had  not 
wholly  worn  away;  and  now  that  I  was  setting  foot 
in  the  streets  of  Geneva,  I  found  myself  wondering 
whether  the  first  John  Bull  in  knickerbockers 
whom  I  might  chance  to  meet  would  not  impress 
one  with  an  ah*  of  his  lordly  proprietorship. 

Because  of  her  political  situation,  remote  from  the 
influence  of  other  powers,  the  negotiators  of  the 
Treaty  of  Washington  had  chosen  Switzerland  as 
the  country  best  fitted  to  furnish  a  locality  for  the 
sessions  of  the  great  Tribunal.  By  way  of  compli- 
ment to  the  Swiss  Federation  one  of  their  sturdiest 
patriots  —  an  ex-President  —  was  asked  to  serve  as 
Arbitrator.  Naturally  enough,  then*  largest  city 
came  to  be  selected  as  the  place  where  the  Tribunal 
should  hold  its  meetings. 


208  THE  GENEVA  TRIBUNAL 

Nature  has  been  generous  in  her  gifts  to  Geneva. 
Seated  at  the  foot  of  a  noble  lake,  whence  issues  the 
swift-flowing  Rhone  (here  crossed  by  numerous 
bridges),  her  borders  hi  one  direction  carry  the  eye  to 
the  snow-capped  summit  of  Mont  Blanc,  and  along 
the  inspiring  ranges  of  the  Alps.  The  country  round- 
about is  beautiful.  One's  first  impression  of  Geneva 
(at  least  so  was  mine)  is  most  favorable.  Here  were 
living  nearly  one  hundred  thousand  souls ;  here  were 
busy  manufactories  to  be  seen  on  every  hand;  jew- 
ellers' shops  with  their  attractive  windows;  streets 
crowded  with  tourists;  well-shaded  parks,  and  at  the 
quays  excursion-boats,  with  their  bands  discoursing 
music  —  all  a  scene  of  no  little  stir  and  bustle.  But 
the  animation  turns  out  to  be  not  of  the  kind  that 
lasts  for  all  day  long.  Indeed,  it  did  not  take  the 
first  twenty-four  hours  to  discover  that  all  this  live- 
liness was  transitory,  and  that  the  normal  tone  of 
Geneva  is  that  of  staid  conservatism. 

It  was  not  a  mere  fancy  that  about  the  tall,  som- 
bre houses  of  the  old  part  of  the  town  there  seemed 
yet  to  linger  a  flavor  of  John  Calvin,  as  if  to  rebuke 
modern  haste  and  frivolity.  Nor  was  it  strange  that 
one  felt  sensible  that  there  was  lurking  in  the  mem- 
ory the  answer  of  Talleyrand  to  the  query,  "Is  it 
not  dull  in  Geneva?"  "Yes,  especially  when  they 
amuse  themselves."  But  we  young  fellows  from 
across  the  sea  were  going  to  like  Geneva — and  we 
did.  When  we  left  it,  there  was  just  a  tinge  of  reluct- 
ance—  and  we  were  carrying  away  with  us  none 


THE  TREATY  SAVED  209 

other  than  exceedingly  pleasing  memories  of  the 
town  and  of  its  people. 

Upon  our  arrival  our  party  took  quarters  at  the 
Beau  Rivage,  where  Mr.  and  Mrs.  Davis  had  for 
several  days  been  installed.  Spacious,  well-ap- 
pointed, and  admirably  kept,  this  hotel,  standing 
on  the  bank  of  the  lake,  a  short  distance  from  the 
built-up  portion  of  the  city,  commanded  a  delightful 
view.  There  were  verandas  on  the  lakeside  that 
afforded  a  pleasant  place  to  sit  of  an  evening.  Most 
of  the  guests  at  this  hotel  were  American  travel- 
lers. 

Here  the  Waites  remained  during  their  entire  stay 
at  Geneva.  Mr.  Gushing  sojourned  here  for  a 
month — and  I  with  him — and  then  we  removed  to 
Pension  Bovet,  a  mile  or  more  distant,  on  the  Quai 
des  Eaux-Vives,  a  fine,  old  house,  with  a  large  garden 
attached.  It  was  known  as  the  Merle  d'Aubigne* 
place,  the  home  for  years  of  that  distinguished  pastor, 
professor,  and  author,  who  here  wrote  the  "  History 
of  the  Reformation."  Mr.  Evarts,  together  with  his 
family,  occupied  a  villa  a  few  steps  from  the  Beau 
Rivage,  farther  up  the  Lake.  This  establishment, 
which  could  boast  of  small  but  well  kept  and  attract- 
ive grounds,  was  presided  over  by  Mrs.  Evarts, 
who,  with  the  aid  of  her  daughters,  made  it  an  Amer- 
ican "  home,"  where  a  simple  and  genuine  hospitality 
was  generously  dispensed. 

Mr.  Adams,  with  Mrs.  Adams,  Miss  Mary  Adams, 
and  Mr.  Brooks  Adams  (his  son  and  Secretary), 
was  living  at  a  handsome  place  out  in  the  country, 


210  THE  GENEVA  TRIBUNAL 

elevated  above  the  Lake,  and  reached  by  a  short 
drive  from  the  town. 

Our  English  friends  (including  the  Lord  Chief 
Justice)  took  lodgings  nearer  the  compact  part  of 
the  city,  at  the  Hotel  des  Bergues,  on  the  bank  of  the 
Rhone,  where  it  issues  from  the  Lake,  close  to  the 
bridge.  It  would  seem  from  the  complaint  which 
Lord  Selborne  has  left  upon  record  that  the  experi- 
ment of  their  living  together  in  town  under  one  roof 
was  not  quite  a  success  —  for  though,  of  course, 
they  constituted  "  a  happy  family,"  the  situation 
they  had  chosen  proved  to  be  far  from  agreeable 
because  of  the  continual  noise  from  the  street.  In 
fact,  Lady  Laura  Palmer  styled  Geneva  "the  noisi- 
est town  she  ever  was  in."  The  arrangement  was 
decided  upon,  it  seems,  for  convenience  of  work. 
"We  might  have  escaped  from  these  annoyances, 
...  if  we  had  taken,  as  some  of  the  Arbitrators, 
and  the  principal  persons  among  the  Americans  did, 
one  of  the  numerous  villas  on  the  lakeside."  l 

The  Canton  of  Geneva  had  put  at  the  disposal  of 
the  two  governments,  for  the  accommodation  of  the 
Tribunal,  a  room,  of  handsome  proportions,  in  the 
ancient  Hotel  de  Ville.  It  bore  the  name  of  "  Salle 
des  Conferences,"  from  the  circumstance  that  here 
it  was  that  officials  of  the  City,  as  well  as  those  of 
the  Canton,  held  their  business  sessions.  Since  1872 
it  has  been  known  as  "  Salle  de  P  Alabama."  A  tablet 
bearing  the  following  inscription  is  now  to  be  seen 
there: — 

1  Memorials,  vol.  i,  p.  243. 


THE  TREATY  SAVED  211 

LE   XIV   SEPTEMBRE   MDCCCLXXII 
LE   TRIBUNAL   ^ARBITRAGE   CONSTITUE 

PAR   LE   TRAITE   DE   WASHINGTON 

RENDIT   DANS   CETTE   SALLE 
SA   DECISION   SUR   LES   RECLAMATIONS 


AINSI   FUT  REGLE   o'tTNE   MANIERE   PACIFIQUE 
LE   DIFFEREND   SURVENU   ENTRE 

LES  ETATS   UNIS 
ET   LE   ROYAUME   DE   LA   GRANDE   BRETAGNE l 

Just  before  our  coming,  a  Convention  of  the 
Geneva  Gross  for  the  succor  of  wounded  in  time  of 
war  had  been  holding  sessions  in  this  hall,  which  had 
retained  the  decorations  —  consisting  of  the  flags  of 
several  nations — tastefully  arranged.  It  was  a  hall, 
with  its  retiring-rooms,  well  adapted  to  the  needs  of 
the  Tribunal.  A  dais  ran  across  one  side,  on  which 
seats  had  been  arranged  behind  desks,  —  as  is  the 
fashion  when  Judges  sit  in  bane.  The  space  in  front 
was  for  the  use  of  the  Secretary,  and  there  were  desks 
at  either  side  for  the  Agents  of  the  two  Govern- 
ments and  like  conveniences  for  Counsel.  Windows 
looked  upon!  a  garden.  I  remember  how  Nature 
smiled  in  this  bit  of  open  space;  for  flowers  were 
blooming,  and  sweet  odors  drifted  in,  as  if  to  pre- 
sage harmony. 

1  "  They  tell  me  that  almost  all  American  visitors  go  to  see  the 
room,  but  very  few  English."  MS.  Letter,  19  February,  1907,  from 
Francis  B.  Keene,  Consul  of  the  United  States  at  Geneva;  to  whom 
I  am  indebted  for  a  copy  of  the  inscription. 


212  THE  GENEVA  TRIBUNAL 

At  the  hour  of  noon,  on  Saturday,  the  15th  of 
June,  1872,  the  Tribunal  opened  its  third,  and  all- 
important,  conference.  The  five  Arbitrators  were  in 
their  seats.  The  Secretary  (M.  Favrot),  the  Agent 
of  Great  Britain  (Lord  Tenterden),  and  the  Agent  of 
the  United  States  (Mr.  Bancroft  Davis)  were  in 
attendance.  The  Counsel  for  Great  Britain  (Sir 
Roundell  Palmer)/  with  his  Assistant  (Professor 
Mountague  Bernard),  and  the  Counsel  for  the 
United  States  (Messrs.  Gushing,  Evarts,  and  Waite) 
were  likewise  present,  as  was  the  Solicitor  for  the 
United  States  (Mr.  Beaman).  All  the  private  sec- 
retaries attended,  both  English  and  American,  — 
Messrs.  Sanderson,  Markheim,  Lee-Hamilton,  Vil- 
liers,1  and  Langley,  from  England;  and  Messrs. 
Adams,  Davis,  Hackett,  Peddrick,2  and  Waite,  from 
the  United  States.  No  one  else  had  been  admitted. 

The  Arbitrators  were  a  fine-looking  body.  They 
presented  the  not  unfamiliar  appearance  of  a  row  of 
Judges;  but  looking  closer  one  missed  that  "  homo- 
geneity" which  characterizes  a  bench  whose  mem- 
bers are  all  of  one  state  or  country.  Here  the  Teu- 

1  "  Sir  Francis  Villiers  is  still  British  Minister  at  Lisbon.  He  was 
at  one  time  Assistant  Under-Secretary  in  the  Foreign  Office,  and 
was  very  popular  there,  as  indeed  he  is  sure  to  be  wherever  he  is. 
Sir  Thomas  Sanderson  is  now  Lord  Sanderson,  and  an  efficient 
member  of  the  House  of  Lords,  where  he  takes  a  great  interest  in 
the  work  of  that  body,  and,  enjoying  very  good  health,  is  able  to 
render  active  service.  He  was,  as  you  know,  an  eminently  efficient 
Under-Secretary."  James  Bryce,  British  Ambassador  to  the  United 
States:  MS.  Letter  to  Hackett,  18  August,  1910. 

1  Secretary  to  Mr.  Evarts. 


THE  TREATY  SAVED  213 

ton  sat  by  the  side  of  the  Latin.  The  racial  contrast 
was  too  pronounced  to  escape  observation. 

The  President,  Count  Sclopis,  a  man  past  seventy 
years  of  age,  was  of  a  large  frame,  and  of  a  courteous 
and  dignified  manner  —  his  exterior  and  his  bearing 
appearing  altogether  such  as  would  seem  to  justify 
his  holding  so  eminent  a  position. 

Upon  his  right  sat  Jacques  Staempfli,  of  the  Can- 
ton of  Berne,  at  three  separate  times  President  of 
the  Swiss  Confederation;  stout  and  of  a  swarthy 
complexion,  staid  and  resolute,  plain  of  feature, 
his  mien  indicating  a  resolute  independence — a 
man  of  the  stuff  of  which  Carlyle  would  have  had 
his  heroes.  Upon  the  President's  left  was  the  Baron 
(soon  to  be  Viscount)  d'ltajuba,  of  Brazil,  an  em- 
bodiment of  gentleness,  small,  slender,  and  of 
an  unusually  refined  appearance.  His  gold-bowed 
glasses  gave  to  him  the  look  of  a  college  professor,  as 
indeed  he  once  had  been,  while  the  warm  coloring  in 
his  face  told  of  the  climate  of  his  native  country.  He 
looked  to  be  an  accomplished,  well-bred  man  of  the 
world.  At  the  extreme  right  sat  Mr.  Charles  Francis 
Adams,  short  of  stature,  of  a  ruddy  complexion,  and 
quite  bald.  He  bore  himself  as  one  who  was  per- 
fectly self-contained.  His  resemblance  to  his  dis- 
tinguished father,  President  John  Quincy  Adams, 
as  seen  in  well-known  portraits,  did  not  seem  at  all 
imaginary,  as  the  Arbitrator  from  the  United  States 
sat  bolt  upright  that  day,  awaiting  in  perfect  com- 
posure the  orderly  procedure  of  the  Tribunal. 


214  THE  GENEVA  TRIBUNAL 

The  Lord  Chief  Justice  of  England,  Sir  Alexander 
Cockburn,  occupying  the  end  seat  to  the  President's 
left,  was  a  man  whose  like  is  not  often  seen.  He,  too, 
was  short  of  stature,  and  likewise  of  a  complexion 
somewhat  ruddy.  He  had  a  head  like  a  bullet,  and 
the  eye  of  an  eagle.  Quick  and  nervous,  his  unceas- 
ing activity  was  in  marked  contrast  to  the  almost 
rigid  demeanor  of  Mr.  Adams.  It  would  not  be  true 
to  declare  of  Sir  Alexander  that  not  for  a  moment 
did  he  remain  still;  but  now  that  I  behold  him 
through  the  vista  of  years,  alive  and  alert  at  one  end 
of  the  highly  dignified  row  of  Arbitrators,  it  almost 
seems  as  if  I  had  never  known  him  to  be  quiet.  Of 
the  five,  Cockburn  was  by  far  the  most  interesting 
figure.  His  form,  his  glowing  countenance,  and  his 
activities,  I  must  confess,  fill  the  largest  place  in  my 
memory  of  the  conferences  which  I  had  the  privilege 
of  attending. 

Before  proceeding  to  narrate  what  took  place  at 
this  critical  hour,  and  during  the  next  four  days, 
fateful  as  they  were  of  results,  let  me  endeavor  to 
present  a  brief  description  of  the  several  personages 
thus  brought  together  in  a  conclave,  the  issue  of 
whose  consultations  was  destined  to  mark  in  history 
the  beginning  of  a  new  epoch. 

At  the  opening  Conference,  held  at  Geneva, 
15  December,  1871,  Mr.  Adams  had  proposed  that 
Count  Sclopis,  being  the  Arbitrator  selected  by 
Italy,  the  Power  first  named  in  the  Treaty  after  the 
United  States  and  Great  Britain,  should  preside.  Sir 


THE  TREATY  SAVED  215 

Alexander  Cockburn  seconded  the  proposal,  and 
Count  Sclopis  was  unanimously  chosen.  He  proved 
himself  conspicuously  worthy  of  the  distinction. 

Frederic  Sclopis  (1798-1878),  at  the  tune  he  was 
named  to  serve  at  Geneva,  was  Minister  of  State  and 
Senator  of  the  Kingdom  of  Italy.  He  lived  at  Turin, 
vigorous  and  hearty  at  the  age  of  seventy-three.  He 
was  a  lawyer,  statesman,  and  author.  He  had  pub- 
lished books  in  French,  "but  his  most  important 
works  are  in  Italian;  and  above  all,  the  learned 
'  Storia  della  Legislazione  Italiana/  the  last  edition 
of  which,  in  five  volumes,  is  a  most  interesting  and 
instructive  exhibition  of  the  successive  stages  of  the 
mediaeval  and  modern  legislation  of  all  the  different 
States  of  Italy."  * 

Large  and  imposing  of  stature,  Count  Sclopis  ex- 
hibited a  demeanor  at  once  benignant  and  fatherly. 
His  address  became  his  high  rank.  So  unaffected 
and  kindly  was  his  manner  that  he  quickly  gained 
the  esteem  of  us  all. 

Mr.  Jacques  Staempfli  (1820-1879)  was  born  of 
German-Swiss  stock  in  the  Canton  of  Berne.  He 
came  to  the  bar  in  1843,  and  was  an  advocate  and 
journalist,  j  He  soon  found  his  way  into  public  life, 
and  with  ability  filled  several  offices.  In  1856  he  was 
elected  President  of  the  Swiss  Federation;  also  in 
1859,  and  again  in  1862.  He  was  a  member  of  the 
National  Council  when  named  as  Arbitrator. 

No  one  could  look  at  Mr.  Staempfli  without  at 

1  The  Treaty  of  Washington,  p.  79. 


216  THE  GENEVA  TRIBUNAL 

once  recognizing  in  him  a  man  of  a  strong  and  rugged 
nature.  He  was  of  medium  stature,  thick-set,  and 
appeared  like  an  athlete.  When  you  heard  him 
speak,  you  would  say  that  here  is  an  earnest  seeker 
after  truth,  bound  to  solve  a  problem  in  his  own 
way,  and  to  stick  to  a  conclusion  with  pertinacity. 
He  exhibited  the  quality  of  self-reliance,  such  as 
might  be  expected  in  one  who  had  risen  by  his  own 
unaided  exertions  to  posts  of  distinction.  He  said 
but  little,  but  what  he  did  say  could  not  be  misun- 
derstood. He  acted  like  a  man  of  great  executive 
force.  No  one  in  public  life  could  have  been  more 
respected  in  Switzerland  than  he;  and  his  bearing  in 
the  Tribunal  inspired  confidence  and  won  respect. 

After  serving  upon  the  Tribunal  he  returned  to 
his  labors  at  the  Swiss  Capital.  Later  Mr.  Staempfli 
resigned  his  position  as  Federal  Councillor,  and 
became  a  Director  of  the  Federal  Bank,  where  he 
appears  to  have  met  with  reverses  that  clouded  his 
later  days.  He  died  15  May,  1879.  Of  plain  demo- 
cratic manners,  he  was  highly  esteemed  by  the  peo- 
ple among  whom  he  lived. 

"  I  have  conversed  with  some  of  the  most  competent 
men  in  the  Swiss  Federation  to  form  a  judgment  about 
Staempfli's  career  and  character.  Without  exception,  it  is 
agreed  that  he  was  a  man  of  unusual  talents,  and  unre- 
servedly consecrated  to  the  service  of  his  country.  It  is 
true  that  his  business  affairs  were  not  successful  in  the 
last  years  of  his  life;  but  this  is  said  to  have  been  owing  to 
his  devotion  to  the  public  service,  and  his  confidence  in 


THE  TREATY  SAVED  217 

others  to  whom  he  confided  his  private  affairs.  One  of  my 
informants  assures  me  that  Mr.  Staempfli  is  still  spoken 
of  by  teachers  in  the  public  schools  as  a  model  statesman 
and  a  patriot.  His  memory  is  certainly  held  in  high 
regard  by  the  Swiss  people."  1 

Baron  d'ltajuba  (who  during  the  progress  of  the 
Arbitration  was  made  a  Viscount)  at  the  time  of  his 
appointment  was  serving  as  Minister  of  Brazil  in 
France.  He  had  previously  been  Minister  in  other 
countries.  When  a  very  young  man  he  was  Pro- 
fessor at  the  Law  School  of  Olinda  (Pernambuco). 
During  his  long  career  in  the  foreign  service  of  his 
country  he  had  enriched  his  mind  by  a  still  more 
profound  study  of  the  principles  of  international 
law  and  of  the  precedents  of  diplomacy.  His  experi- 
ence in  Europe  and  his  ripe  scholarship  well  fitted 
him  to  pass  upon  the  questions  to  be  presented  at 
Geneva.  His  manners  were  extremely  polished.  He 
spoke  in  a  low  tone  —  always  showing  deference  to 
his  colleagues.  Lord  Selborne  has  scant  praise  for 
the  neutral  Arbitrators  who  could  not  on  all  points 
find  in  England's  favor.  He  says  of  d'ltajuba:  He 
was  "  a  small  man,  of  good  figure,  cheerful  looks,  and 
agreeable  conversation;  not  learned,  but  altogether 
a  gentleman."  2  His  full  name  was  Marcus  Antonio 
d'Araujo.  His  son,  Antonio  d'Araujo,  accompanied 
him  as  Secretary;  a  young  man  of  pleasing  address, 

1  MS.  Letter  of  Honorable  David  J.  Hill,  American  Minister, 
Berne,  15  June,  1904. 

*  Memorials,  vol.  i,  p.  253. 


218  THE  GENEVA  TRIBUNAL 

who  subsequently  (1885)  came  to  Washington  as 
Minister  from  Brazil.1 

By  the  terms  of  the  Treaty,  the  United  States  and 
Great  Britain  each  named  an  Arbitrator.  Whatever 
objection  may  have  existed  in  theory  to  putting 
upon  the  Tribunal  a  representative  from  each  of  the 
parties  to  the  controversy,  there  can  be  no  doubt 
that  the  plan  proved  to  have  been  wisely  conceived. 
Thus  each  nation  through  its  Arbitrator  was  en- 
abled to  have  some  one  present  who  could  explain 
from  personal  knowledge  such  points  of  difficulty  as 
might  arise  from  a  lack  of  familiarity  with  the  lan- 
guage and  with  the  political  history  of  the  two  op- 
posing countries. 

In  his  dissenting  opinion  (of  which  something  will 
be  said  in  a  later  chapter)  Sir  Alexander  Cockburn, 
after  citing  certain  statements  in  the  Argument  of 
Counsel  of  the  United  States,  says:  — 

"  Sitting  on  this  Tribunal  as  in  some  sense  the  represen- 
tative of  Great  Britain,  I  cannot  allow  these  statements  to 
go  forth  to  the  world  without  giving  them  the  most  posi- 
tive and  unqualified  contradiction."  2 

For  this  characterization  of  himself  the  Agent  of 

1  Besides  being  Minister  to  the  United  States,  the  younger 
d'ltajuba  served  as  Minister  to  Spain,  to  Italy,  to  France,  and  to 
Germany.  At  the  last-named  post  he  died,  in  1897.  "I  recollect  his 
father  telling  me,  in  1873,  how  useful  he  had  been  to  the  Geneva 
Court  in  drafting  some  difficult  point  of  the  Geneva  Award." 
MS.  Letter  (9  December,  1907)  of  Joaquim  Nabuco,  Brazilian 
Ambassador,  E.  and  P.,  to  the  United  States. 

2  Gen.  Arb.t  vol.  iv,  p.  286. 


THE  TREATY  SAVED  219 

the  United  States  takes  Sir  Alexander  to  task,1  and 
Mr.  Fish  does  the  same.2  Sir  Alexander,  however, 
was  entirely  justified  in  using  the  language  that  he 
did.  It  is  hardly  fair,  as  Bancroft  Davis  does,  to 
quote  this  expression  as  in  any  sense  a  confession 
that  he  sat  on  the  Tribunal  "not  as  a  Judge."  3 

In  respect  to  both  Charles  Francis  Adams  and  Sir 
Alexander  Cockburn,  there  is  little  need  here  of  re- 
citing anything,  except  in  the  very  briefest  terms, 
as  to  the  record  of  their  life-work  before  taking  seats 
upon  this  Tribunal. 

Mr.  Adams  (1807-1886)  was  the  son  of  President 
John  Quincy  Adams.  He  was  graduated  at  Harvard 
in  1825,  and  for  a  short  period  studied  law  in  the 
law-office  of  Daniel  Webster,  at  Boston.  From  1831 
to  1836  he  served  in  the  Legislature  of  Massachu- 
setts. He  early  took  an  interest  in  public  affairs,  and 
became  identified  with  the  anti-slavery  wing  of  the 
Whig  Party.  In  1848  he  was  candidate  for  Vice- 
President  upon  the  Free-Soil  ticket,  which  bore  the 
name  of  Martin  Van  Buren  for  President.  In  1858 
he  was  elected  to  Congress  and  reflected  in  1860. 
It  may  be  mentioned  that,  at  the  time  he  was  en- 
gaged as  an  Arbitrator  at  Geneva,  the  name  of  Mr. 
Adams  was  brought  prominently  before  the  public 
as  a  possible  nominee  of  the  Democratic  National 
Convention  for  President. 

His  invaluable  service  to  the  cause  of  the  Union, 

»  Gen.  Arb.,  vol.  Iv,  p.  12.  «  Ibid.,  p.  547. 

«  Ibid.,  p.  12. 


220  THE  GENEVA  TRIBUNAL 

as  every  one  will  recall,  was  rendered  in  the  capacity 
of  Minister  of  the  United  States  to  Great  Britain 
from  1861  to  1865.  His  career  at  that  post  has  be- 
come a  part  of  the  history  of  his  country. 

Looking  back  over  the  events  of  that  memorable 
period,  and  viewing  the  stately  and  brave  figure  at 
St.  James's,  we  are  at  a  loss  to  name  a  public  character 
other  than  Mr.  Adams,  who  could  have  stayed  there 
and  displayed  the  patience,  almost  infinite,  that  he 
did,  combined  with  a  superb  courage  and  inflexibil- 
ity of  will.  It  is  not,  I  am  sure,  partiality  for  my  own 
countryman  that  prompts  me  to  say  that  Charles 
Francis  Adams  stood  foremost  in  the  Geneva  Tri- 
bunal for  strength  of  intellect,  vigor,  and  above 
all,  for  an  exhibition  of  "  the  cold  neutrality  of  the 
impartial  judge." 

If  Mr.  Adams  looked  to  be  an  intellectual  force, 
surely  the  Lord  Chief  Justice  of  England  presented 
the  appearance  of  a  man  of  remarkable  talent.  The 
latter  was  indeed  a  most  interesting  figure. 

Alexander  James  Edmund  Cockburn  (1802-1880) 
came  of  a  good  family.  He  was  born  in  France  of  a 
French  mother.  An  uncle  of  his  was  that  Admiral 
Cockburn  of  the  British  Navy,  who  is  remembered 
in  the  United  States  hi  connection  with  the  burning, 
in  1814,  of  the  Capitol  at  Washington.  The  future 
Chief  Justice  entered  at  Trinity,  Cambridge,  in 
1822,  and  came  early  to  the  Bar.  He  could  speak 
fluently  French,  German,  Italian,  and  Spanish.  In 
1850,  upon  the  occasion  of  the  severe  criticism  of 


THE  TREATY  SAVED  221 

Lord  Palmerston's  conduct  in  the  Don  Pacifico 
affair,  Cockburn  delivered  a  brilliant  and  effective 
speech  in  the  Commons,  in  defence  of  the  Adminis- 
tration. This  display  of  his  powers  as  a  debater  led 
to  his  appointment  as  Solicitor-General.  In  1851  he 
became  Attorney-General.  In  1856  he  was  made 
Chief  Justice  of  the  Common  Pleas,  and  three  years 
later  Chief  Justice  of  the  Court  of  Queen's  Bench. 

Quick  and  ready,  he  excelled  as  a  nisi  prius  judge. 
He  presided  over  the  Tichborne  trial,  where  his 
charge  to  the  jury  consumed  eighteen  days.  It 
filled  sixteen  hundred  pages,  as  afterwards  printed 
in  two  volumes.  Sir  Alexander  exhibited  a  taste  for 
literature.  He  had  collected  material  for  a  book  on 
the  authorship  of  Junius;  and  it  is  understood  that 
he  had  made  some  progress  in  the  work,  but  he  did 
not  live  to  complete  it.  He  was  a  close  friend  of 
Charles  Dickens.  Greatly  liked  by  his  intimates, 
he  was  a  raconteur  of  no  little  note,  and  a  favorite 
in  society. 

The  friends  of  Sir  Alexander  Cockburn  have  cred- 
ited him  with  genius;  and  the  claim  perhaps  is  not  to 
be  denied.  A  striking  personage  he  was.  Rather 
small,  of  a  ruddy  complexion,  quick  of  movement, 
even  to  restlessness,  one  saw  at  Geneva  little  in  his 
bearing  of  the  calm,  judicial  dignity  which  is  com- 
monly supposed  to  characterize  the  occupant  of  so 
lofty  a  position  as  that  of  the  Lord  Chief  Justice  of 
England.  It  is  not  uncharitable  to  say  of  him  that, 
in  discarding  wig  and  gown,  to  become  an  Arbitrator, 


222  THE  GENEVA  TRIBUNAL 

Sir  Alexander  seems  to  have  laid  aside  also  the 
greater  part,  if  not  all,  of  that  self-control,  and  chas- 
tening sense  of  responsibility,  which  mark  the  judge. 
In  fact,  he  disported  himself  as  if  ill  at  ease  with  his 
colleagues.  He  talked  a  good  deal,  and  delivered  his 
jerky,  incisive  sentences  hi  a  tone  at  tunes  by  no 
means  conciliatory. 
Of  this  remarkable  man  Lord  Selborne  says :  — 

"He  had  gifts  approaching  to  genius.  French  on  his 
mother's  side,  with  a  perfect  knowledge  of  that  language, 
and  other  fine  accomplishments,  he  had  a  Frenchman's 
clearness,  vivacity,  and  mobility  of  intellect.  A  small, 
spare  man,  of  good  figure,  with  light  red  hair,  sanguine 
complexion,  and  refined  and  expressive  angular  features, 
his  air  was  marked  by  a  consciousness  of  power.  .  .  .  His 
life  had  been  irregular;  his  amour-propre  was  strong,  and 
his  feelings  were  quick  and  excitable.  To  obtain  influence 
with  him  required  some  tact,  allowance  for  his  humours, 
and  study  of  his  character;  but  those  who  once  gained  his 
good-will,  found  him  warm-hearted  and  generous.  On  the 
Bench  as  at  the  Bar,  he  was  splendid,  rather  than  learned 
or  profound;  but  he  was  able  to  make  himself  master  of 
any  subject  which  gave  scope  for  his  powers,  and  took 
pains  to  do  so."  1 

This  estimate  appears  to  be  well  considered  and 
just.  There  could  be  no  doubt  whatsoever  of  the 
extraordinary  power  possessed  by  the  Lord  Chief 
Justice  of  successfully  going  through  the  process 
of  what  is  known  as  "  cramming."  There  are  many 

1  Memorials,  vol.  i,  pp.  495-496. 


THE  TREATY  SAVED  223 

indications  that  when  he  arrived  at  Geneva  his 
mind  had  been  made  up  that  the  Arbitration  would 
not  go  on.  He  could  have  brought  away  from  Eng- 
land only  a  very  slight  knowledge  of  the  details 
of  the  case.  Consequently,  when  he  found  that  the 
Treaty  was  not  to  be  broken,  he  straightway  pre- 
cipitated himself  into  a  most  exacting  study  of  the 
subject-matter.  Day  and  night  he  worked  prodig- 
iously, giving  not  an  hour  to  relaxation,  and  getting 
through  an  amount  of  labor  that  was  simply  im- 
mense. 

Altogether,  while  the  Lord  Chief  Justice  may  not 
be  pronounced  a  happy  selection  for  the  fortunes 
of  Great  Britain,  he  showed  himself  to  be  an  ex- 
traordinary personage.  Of  the  many  eminent  men 
gathered  at  Geneva,  no  one  succeeded  in  leaving  a 
deeper  impression  of  himself  upon  the  record  of  this 
august  procedure,  or  upon  the  memories  of  those  who 
participated  therein,  than  this  indomitable  repre- 
sentative of  the  power  and  the  greatness  of  England. 

The  Secretary  of  the  Tribunal,  M.  Alexandra 
Favrot,  was  a  man  of  slender  figure,  whose  demeanor 
was  quiet  and  gentle.  He  was  a  native  of  Porrentruy 
in  the  Jura  part  of  the  Canton  of  Berne.  He  spoke 
English  perfectly,  having  resided  for  several  years  in 
England.  For  a  long  period  he  had  been  professor  of 
French  in  the  Cantonal  school  at  Berne.  At  the  time 
of  the  religious  conflict  in  the  Jura,  M.  Favrot  was 
made  Prefect  of  the  District  of  Porrentruy,  an 
office  which  he  held  until  his  death,  several  years 


224  THE  GENEVA  TRIBUNAL 

ago.1  M.  Favrot  performed  the  duties  of  his  office 
with  fidelity,  and  in  a  manner  that  was  pleasing  to 
all  with  whom  he  came  in  contact. 

England  sent  one  of  her  greatest  lawyers  to  de- 
fend her  cause  before  the  Tribunal,  in  the  person  of 
Sir  Roundell  Palmer  (1812-1895).  He  was  gradu- 
ated at  Trinity,  Oxford,  hi  1834,  called  to  the  Bar 
in  1837,  and  made  Queen's  Counsel  in  1849.  He 
became  Solicitor-General  in  1861,  and  Attorney-Gen- 
eral in  1864.  After  his  service  at  Geneva,  he  was 
raised  hi  1872  to  the  peerage,  with  the  title  of  Lord 
Selborne,  and  was  made  Lord  Chancellor,  a  position 
which  he  held  for  a  brief  term  only,  until  the  Glad- 
stone Ministry,  hi  1873,  went  out  of  office.  He 
again  held  the  seals  as  Lord  Chancellor — from  1880 
to  1885.2 

Probably  no  man  in  the  Kingdom  had  bestowed 
a  closer  or  more  conscientious  study  upon  the  ques- 
tions involved  in  the  Arbitration  than  Mountague 
Bernard,  Professor  of  International  Law  at  Oxford, 
who  was  chosen  by  the  British  Government  as  an 

1  MS.  Letter  of  Francis  B.  Keene,  United  States  Consul  at 
Geneva,  23  February,  1907. 

8  Sir  Roundell  was  an  ardent  churchman.  He  is  known  as  the 
editor  of  The  Book  of  Praise  from  the  Best  English  Hymn  Writers.  A 
volume  of  autobiographical  writings,  in  the  shape  of  Memorials 
from  his  pen,  appeared  in  1898,  under  the  editorship  of  his  daugh- 
ter, containing  much  interesting  material  regarding  public  affairs 
in  which  he  had  taken  part.  Sir  Roundell  looked  for  all  the  world 
the  cultivated,  high-bred  English  gentleman  that  he  was.  A  man  of 
simple  and  agreeable  manners,  though  of  rather  a  serious  cast  of 
countenance,  he  was  liked  by  everybody. 


THE  TREATY  SAVED  225 

assistant  to  Sir  Roundell  Palmer.  He  did  his  full 
duty  in  that  responsible  office.  Of  a  spare  figure, 
with  a  slight  stoop,  Mountague  Bernard  (1820-1882) 
wore  the  look  of  a  scholar.  He  was  shy  and  retiring. 
We  younger  men  of  course  met  him  socially,  but  our 
acquaintance  with  him,  as  I  recall  it,  did  not  reach 
that  degree  of  intimacy  that  characterized  our  inter- 
course with  the  others  of  the  English  party  (Sir 
Alexander  excepted)  because  of  a  reserve,  whose 
nature  we  doubtless  misunderstood.  At  all  events, 
his  intellectual  face  and  gentle  ways  have  left,  I  find, 
a  most  pleasing  impression  on  my  memory. 

Mention  is  made  elsewhere  in  these  pages  of  his 
very  able  work,  "A  Historical  Account  of  the  Neu- 
trality of  Great  Britain  during  the  American  Civil 
War"  (London,  1870),  which,  aside  from  its  learn- 
ing, reveals  in  the  author  a  man  of  high  ideals  and 
of  singular  purity  of  character. 

It  seems  that  Bernard  had  in  his  early  days  been 
a  pupil  of  Palmer,  and  the  two  were  always  warm 
friends.  Sir  Roundell  says  of  him  in  terms  which  it 
is  a  special  pleasure  to  quote: — 

"  Mountague  Bernard  (who"  never  married)  was  a  stud- 
ent all  his  life,  dividing  his  later  years,  unless  employed 
on  any  public  duty,  between  Oxford  and  a  house  called 
Over-Ross,  near  Ross  in  Herefordshire,  where  some  of 
his  family  lived.  In  the  beautiful  churchyard  of  Ross, 
overlooking  the  Wye,  his  remains  rest.  He  was  a  man  of 
singular  gentleness,  with  a  wide  range  of  intellectual  in- 
terests; never  putting  himself  forward,  but  always  ready 


226  THE  GENEVA  TRIBUNAL 

for  any  duty  which  he  could  perform/  He  was  associated 
with  Lord  Blatchford,  Thomas  Henry  Haddan,  and  Dean 
Church  in  the  foundation  of  the  Guardian  newspaper; 
and  with  them,  was  a  frequent  contributor  to  it,  and 
helped  to  maintain  it  in  a  higher,  more  temperate,  and 
more  religious  tone  than  has  usually  been  found  in  the 
organs  of  ecclesiastical  parties.  He  was  also  an  able  and 
clear  political  and  judicial  writer,  and  exercised  over 
many  minds,  without  seeking  it,  a  wholesome  influence."  * 

The  English  Secretaries  were  every  one  of  them 
fine  fellows,  ready  at  once  to  get  on  the  best  of 
terms  with  us  young  men  from  "the  States."  They 
were  kept  very  busily  at  work,2  and  we  likewise  had 
duties  to  perform  that  frequently  left  little  time  for 
leisure;  but  for  all  this,  all  of  us  were  much  thrown 
together,  with  the  result  that  we  soon  learned  to 
respect  and  esteem  each  other.  Sanderson  who  retired 
as  Sir  Thomas  Sanderson,  after  a  life-work  of  useful- 
ness as  Under-Secretary  at  the  Foreign  Office  is  now 
Lord  Sanderson.  Lee-Hamilton  died  at  Florence  in 
November,  1907,  leaving  a  reputation  as  a  writer  of 
sonnets;  while  Sir  Francis  Hyde  Villiers  became  in 
1907  Minister  Plenipotentiary  at  Lisbon. 

Lord  Selborne  says  of  these  young  men:  — 

"  Mr.  Eugene  Lee-Hamilton  and  Mr.  Fitzroy  Langley 

1  Memorials,  vol.  1,  pp.  251-252. 

8  "  There  have  been  no  office-hours  here,  all  hours  have  been 
office-hours,  from  early  morning  till  late  at  night."  Tenterden  to 
Granville,  14  September,  1872,  British  Blue  Book,  "  North  Amer- 
ica," No.  1  (1873),  p.  379. 


THE  TREATY  SAVED  227 

were  specially  attached  as  translator  and  secretary  to 
myself;  and  Mr.  Markheim,  a  Fellow  of  Queen's  College, 
Oxford,  who  with  Mr.  Sanderson  performed  similar  duties 
for  the  Chief  Justice,  .  .  .  afterwards  reinforced  by  an- 
other promising  young  man  from  the  Foreign  Office,  Mr. 
Frank  Villiers,  son  of  Lord  Granville's  predecessor  [Lord 
Clarendon].  .  .  .  Mr.  Sanderson  made  all  our  arrange- 
ments for  us  and  was  one  of  the  most  useful  and  popular 
members  of  our  party.  .  .  .  Mr.  Langley  (since  dead)  was 
of  Irish  birth,  sprightly  and  intelligent,  and  never  sparing 
himself  trouble.  Mr.  Hamilton  was  a  man  of  a  bright, 
delicate  spirit,  and  a  very  accomplished  linguist.  He 
passed  soon  afterwards  into  the  diplomatic  service,  in 
which  he  had  every  prospect  of  rising;  but  his  health  gave 
way  and  he  was  obliged  to  leave  it,  and  afterwards  took 
to  poetry."  l 

1  Memorials,  vol.  i,  pp.  248-252.  A  curious  expression  this — 
"  took  to  poetry  ";  much  as  one  would  say  of  a  man  that  "  he  took 
to  drink."  As  the  result  of  an  accident,  about  1873,  poor  Lee-Hamil- 
ton was  condemned  to  an  almost  living  death.    He  suffered  in- 
tensely, confined  all  the  while  to  his  couch.   His  indomitable  will 
gained  a  victory,  so  that  although  enduring  exquisite  pain,  he 
turned  his  thoughts  to  a  closer  sympathy  with  the  experiences  of 
his  fellow  men.  He  composed  lines,  instinct  with  deep  feeling  and 
pervaded  by  a  calm  and  hopeful  spirit  of  interpretation  of  life's 
vicissitudes.    In  1891  he  published  The  Fountain  of  Youth,  and  in 
1894,  Sonnets  of  the  Wingless  Hours.  The  American  reader  will  find 
a  selection  of  his  sonnets  in  Stedman's  Victorian  Anthology  (1895). 
?'  I  know  not  in  what  metal  I  have  wrought; 
Nor  whether  what  I  fashioned  will  be  thrust 
Beneath  the  clouds  that  hide  forgotten  thought; 
But  if  it  is  of  gold  it  will  not  rust; 
And  when  the  time  is  ripe  it  will  be  brought 
Into  the  sun  and  glitter  through  its  dust." 
An  appreciative  tribute  to  Lee-Hamilton's  powers  as  a  writer  of 


228  THE  GENEVA  TRIBUNAL 

H.  W.  G.  Markheim  was  a  man  of  many  attract- 
ive traits,  a  cultivated  scholar,  who  was  highly 
esteemed  by  his  associates  at  Oxford.  He  did  won- 
derful work  as  a  translator.  I  came  to  know  him 
more  intimately  than  any  of  the  others  of  the  Eng- 
lish party.  We  took  walks  together,  and  talked  on 
various  topics,  other  than  the  object  of  our  stay 
in  Geneva.  Markheim  had  lived  in  Paris  through 
the  Franco-Prussian  War — an  experience  that  furn- 
ished the  occasion  of  his  writing  a  clever  book  en- 
titled "  Inside  Paris  during  the  Siege. "  It  has  been 
translated  into  German,  French,  and  Italian.  He 
also  translated  into  French  "  The  Causes  and  Con- 
duct of  the  South  African  War,  by  Dr.  A.  Conan 
Doyle,"  1902.  Mr.  Markheim  died  22  November, 
1906.  * 

Although  somewhat  out  of  the  order  of  time,  here 
would  seem  to  be  a  convenient  place  to  mention,  in 
the  fewest  words  possible,  some  of  the  positions 
which  members  of  the  American  party  attained 
after  their  return  home  from  Geneva. 

Mr.  Adams  sought  retirement.  On  the  day  of  the 
last  session  of  the  Tribunal,  he  wrote:  "  I  may  hope 
to  consider  it  an  honorable  termination  to  my  pub- 

the  sonnet  will  be  found  in  the  November,  1907,  number  of  The 
Bookman,  written  by  Edith  Wharton. 

1  Mr.  Hildyard,  of  the  Legation  at  Berne,  also  rendered  valuable 
assistance.  Both  Tenterden  and  Sir  Roundell,  let  me  add,  spoke  in 
their  official  report  in  unqualified  terms  of  the  services  performed  by 
Mr.  Lee-Hamilton. 


THE  TREATY  SAVED  229 

lie  career."  J  In  his  home  at  Quincy,  Massachusetts, 
he  occupied  himself  in  arranging  for  publication  por- 
tions of  the  Diary  of  his  distinguished  father.  His 
was  the  supreme  happiness  of  knowing  that  he  had 
deserved  well  of  the  Republic,  and  that  his  country- 
men gratefully  held  him  in  honor  for  what  he  had 
done. 

Not  long  after  returning  home,  Mr.  Bancroft 
Davis  was  re-appointed  Assistant  Secretary  of 
State.  From  1874  to  1877  he  was  Minister  to  Ger- 
many, a  worthy  successor  at  that  Court  of  his  uncle, 
George  Bancroft.  Upon  resigning  that  office,  and 
coming  back  to  Washington,  he  became  a  Judge 
of  the  Court  of  Claims.  At  the  request  of  Pre- 
sident Arthur,  he  resigned  his  judgeship  and  served 
once  more  (for  six  months)  as  Assistant  Secretary 
of  State.  He  was  then  re-appointed  to  the  Court  of 
Claims.  His  services  upon  the  bench  (though  not  of 
long  duration)  were  of  conspicuous  merit.  In  1883  he 
left  the  Bench  to  enter  upon  the  office  of  Reporter 
of  the  decisions  of  the  Supreme  Court  of  the 
United  States.  The  duties  of  this  office  he  performed 
for  a  period  of  nineteen  years,  to  the  entire  satisfac- 

1  Charles  Francis  Adams  (American  Statesmen),  by  his  son, 
Charles  Francis  Adams,  p.  398.  No  more  touching  piece  of  bio- 
graphical narrative  than  the  brief  chapter  that  in  simple  terms 
brings  to  a  close  this  admirable  sketch,  has,  so  far  as  I  recall,  been 
written  since  Lockhart's  Life  of  Scott.  Mr.  Adams's  promise  to  give 
to  the  world  "  a  larger  and  more  detailed  work  "  than  this  volume 
warrants  the  belief  that  the  history  of  this  period  will  be  enriched 
by  a  contribution  of  permanent  value. 


230  THE  GENEVA  TRIBUNAL 

tion  of  the  Court  and  Bar.  Among  his  publications 
Bancroft  Davis  is  specially  to  be  credited  with 
''Treaties  of  the  United  States,  with  Notes,"  and 
"Mr.  Fish  and  the  Alabama  Claims."  The  latter 
work,  though  comprised  hi  a  brief  compass,  as  it 
was  designed  to  be,  contains  matter  of  historical 
value  that  no  other  than  the  author  himself  could 
have  furnished.1 

Mr.  Cushing  resumed  his  law  practice,  on  his 
return  to  Washington,  employing  his  leisure  hours 
at  first  hi  writing  a  book  entitled  "The  Treaty  of 
Washington."  2  In  January,  1874,  President  Grant 
sent  the  name  of  Mr.  Cushing  to  the  Senate  to  be 
Minister  to  Spain,  and  the  nomination  was  con- 
firmed. About  this  tune  the  Senate  showed  an 
unwillingness  to  confirm  George  H.  Williams  of 
Oregon,  to  be  Chief  Justice  of  the  United  States; 
whereupon  the  President  withdrew  the  nomination, 
and  sent  in  the  name  of  Caleb  Cushing  for  that 
office.  It  was  an  extraordinary  step  to  seek  to  put 
at  the  head  of  the  Supreme  Court  of  the  United 
States  a  man  of  seventy-four  years  of  age.  Besides, 

1  Bancroft  Davis  died  at  Washington  27  December,  1907,  lacking 
only  two  days  of  being  eighty-five  years  old. 

8  One  morning,  in  Washington,  an  old  acquaintance,  who  had 
been  successful  in  the  banking  business,  Mr.  Moses  Kelly,  met  Cush- 
ing on  the  street,  when  the  following  colloquy  ensued:  — 

"Good  morning,  Mr.  Cushing,  how  are  you  this  morning?" 

"Fairly  well,  except  for  a  disease  that  old  men  have." 

"Ah,  what  is  that,  Mr.  Cushing?" 

"Avarice,"  replied  Cushing,  as  he  passed  on. 


THE  TREATY  SAVED  231 

with  all  his  ability  and  learning,  Gushing  was  not 
regarded  by  those  who  knew  him  intimately  as  pos- 
sessed of  strong  moral  convictions.  The  doings  of 
the  Senate  in  executive  session  are  secret,  and  no 
one  has  a  right  authoritatively  to  say  upon  what 
grounds  a  nomination  is  opposed  or  rejected.  A  let- 
ter written  by  Mr.  Gushing  to  President  Jefferson 
Davis  in  March,  1861,  recommending  a  young  man 
for  a  position  was  read  before  the  caucus  of  the  Re- 
publican Senators,  and  at  Mr.  Cushing's  request 
President  Grant  withdrew  his  name.1  Mr.  Gushing 

1  For  an  estimate  of  Mr.  Gushing  and  observations  on  his  char- 
acter, by  one  who  had  known  him  for  years,  the  reader  may  consult 
Sixty  Years  in  Public  Affairs,  by  George  S.  Boutwell,  vol.  i,  pp.  119- 
123.  "  The  truth  was,  Gushing  was  destitute  of  convictions.  .  .  . 
His  purposes  were  not  bad,  and  his  disposition  to  aid  others  was  a 
charming  feature  of  his  character.  .  .  .  He  was  too  much  inclined 
to  adhere  to  the  existing  powers,  and  consequently  he  was  ready  to 
change  whenever  a  new  party  or  a  new  set  of  men  attained  author- 
ity. As  an  official  he  would  obey  instructions,  and  as  an  assistant 
in  legal,  historical,  or  diplomatic  researches,  he  had  no  rival.  He 
attained  to  high  positions,  and  yet  he  was  never  fully  trusted  by 
any  administration  or  party."  Ibid.,  p.  120. 

A  younger  public  man  than  Governor  Boutwell  and  equally  as 
shrewd  an  observer  has  expressed  the  opinion  that  the  Senate  in 
denying  Cushing's  confirmation  acted  "most  foolishly  and  without 
reason."  "  He  was  one  of  the  few  public  men  whose  merits  have  been 
under-estimated  rather]  than  over-estimated,  and  it  will  be  many 
years  before  this  country  will  see  the  equal  of  the  learned,  wise,  genial, 
marvellous  Gushing."  Address  before  the  Grafton  and  Coos  New 
Hampshire  Bar  Association,  by  Senator  William  E.  Chandler,  1888, 
p.  12. 

The  following  extract  from  the  remarks  of  Chief  Justice  Waite 
(13  January,  1879)  upon  the  occasion  of  presenting  to  the  Court  the 


232  THE  GENEVA  TRIBUNAL 

went  as  Minister  to  Spain,  where  he  served  until 
1877.  He  knew  Spain  well.  When  a  young  man  he 
had  visited  that  country,  and  later  had  written  two 
volumes,  "Reminiscences  of  Spain."  At  the  Court 
of  Madrid  Mr.  Gushing  spoke  the  language  with  the 
ease  and  the  correctness  of  the  best  Spanish  scholars. l 
He  came  home  and  lived  in  retirement  at  New- 
buryport,  Massachusetts,  near  his  native  town. 

Mr.  Evarts  returned  to  his  law  practice  in  New 
York  City.  He  was  conspicuous,  hi  1875,  as  senior 
counsel  in  the  Henry  Ward  Beecher  trial.  An  elec- 

resolutions  adopted  by  the  Bar  in  memory  of  Mr.  Gushing,  may 
fittingly  be  quoted  here:  — 

'  It  was  my  fortune  to  be  associated  with  Mr.  Gushing  before  the 
Tribunal  of  Arbitration  at  Geneva,  and  I  should  be  false  to  my  own 
feelings  if  I  failed  to  record  an  expression  of  gratitude  for  the  kind- 
ness and  encouragement  I  received  at  his  hands  during  all  the  time 
we  were  thus  together.  He  was  always  just  towards  his  juniors, 
and  on  that  occasion  he  laid  open  his  vast  storehouse  of  knowledge 
for  the  free  use  of  us  all.  While  assuming  that  our  success  would  be 
his,  he  was  willing  that  his  should  be  ours.  He  knew  that  much  en- 
couragement can  lighten  the  burden  of  labor,  and  never  failed  to 
give  it  when  opportunity  was  offered.  Whatever  he  may  have  been 
to  others,  to  us  who  were  with  him  at  Geneva,  he  will  be  remem- 
bered as  a  wise  and  prudent  counsellor  and  a  faithful  friend." 
99  United  States  Reports,  xi. 

1  "With  some  premonition,  perhaps,  that  his  own  end  was  near 
(although  he  did  not  desist  from  projects  of  labor  and  study),  Mr. 
Gushing,  since  his  return  from  Madrid,  a  little  more  than  a  year 
ago,  resided  principally  at  his  old  home  in  Newburyport.  The 
anchor  of  the  storm-worn  ship  was  to  fall  where  first  its  pennant 
had  fluttered  in  the  breeze."  Attorney-General  Charles  Devens 
(13  January,  1879),  before  the  Supreme  Court  of  the  United  States. 
Ibid.,  ri. 


THE  TREATY  SAVED  233 

toral  commission  was  created  early  in  1877,  to  de- 
termine whether  Hayes  or  Tilden  should  be  de- 
clared elected  President  of  the  United  States.  Mr. 
Evarts  was  one  of  the  most  distinguished  advo- 
cates who  took  part  in  the  argument.  President 
Hayes  made  him  Secretary  of  State,  an  office  which 
Mr.  Evarts  filled  for  the  full  term  of  four  years.1 

In  1881  he  went  as  a  delegate  to  the  Interna- 
tional Monetary  Conference,  held  at  Paris.  From 
1885  to  1891  Mr.  Evarts  was  a  Republican  United 
States  Senator  from  the  State  of  New  York.  He  is 
chiefly  remembered  in  that  office  for  his  labors  in 
connection  with  the  establishment  of  the  Circuit 
Court  of  Appeals,  the  statute  providing  for  that 
important  change  in  the  judiciary  system  being 
known  as  the  "  Evarts  Act." 

A  most  remarkable  turn  of  fortune  was  exempli- 
fied in  the  case  of  Mr.  Waite.  In  January,  1874, 

1  After  his  usual  fashion,  Mr.  Evarts  scattered  through  the  Hayes 
administration  a  goodly  number  of  bright  sayings,  some  of  them 
still  current  at  the  Capital.  I  must  find  room  for  one  or  two. 

As  soon  as  Hayes  was  sworn  in,  a  horde  of  office-seekers  from 
Ohio  swooped  down  upon  Washington.  "Mr.  President,"  said 
Evarts,  "I  have  heard  a  good  deal  about  the  Western  reserve,  but  I 
have  n't  seen  much  of  it  here  lately." 

Coming  into  the  building  of  the  Department  of  State,  one  fore- 
noon, on  his  way  to  his  office,  the  new  Secretary  missed  the  elevator, 
which  was  just  going  out  of  sight,  jammed  with  visitors.  "The 
largest  collections  for  foreign  missions  I  have  ever  seen  taken  up," 
remarked  Evarts  dryly. 

Hayes  abolished  the  use,  during  his  term,  of  wine  at  State  din- 
ners. It  was  Evarts  who  said,  "Water  flows  like  champagne  at  the 
White  House." 


234  THE  GENEVA  TRIBUNAL 

while  presiding  over  a  Constitutional  Convention 
in  Ohio,  news  came  that  President  Grant  had  sent 
Waite's  name  to  the  Senate  to  be  Chief  Justice  of 
the  United  States.  It  was  Bancroft  Davis  who  had 
suggested  to  the  President  the  eminent  fitness  of  Mr. 
Waite  for  this  exalted  post.  The  nominee  was  imme- 
diately confirmed;  and  on  4th  March  following  he 
took  his  seat  upon  the  Bench  of  the  Supreme  Court. 
Here  he  proved  to  be  hi  every  respect  worthy  of 
the  choice,  a  sound  lawyer  and  a  model  executive 
officer.  His  personal  qualities  won  the  esteem  and 
affection  of  Bench  and  Bar.  It  is  to  be  observed  that 
among  the  numerous  heartfelt  tributes  paid  by  the 
Bar  at  his  decease  in  1888,  upon  the  occasion  of  me- 
morial exercises,  none  were  more  grateful  than  that 
in  the  Circuit  Court  of  the  United  States  for  the 
District  of  South  Carolina,  expressing 
"  the  sincere  regard  and  affection  we  have  cherished  for 
him  as  a  friend  in  the  relations  of  private  life;  and  which 
unitedly  impel  us  to  offer  this  truthful  and  honest  tribute 
to  the  memory  of  a  good  man,  a  distinguished  fellow- 
citizen,  an  upright,  honest,  learned,  just,  and  incorrupt- 
ible judge  —  one  whose  name  and  fame  we  shall  hold  in 
long  and  grateful  remembrance." 

Since  the  official  acts  of  Mr.  John  Davis,  Secretary 
to  the  Agent  of  the  United  States,  were  performed 
with  an  efficiency  and  a  discretion  looked  for  only 
in  a  man  of  ripe  experience,  it  was  hard  to  realize 
that  he  had  but  reached  his  twenty-first  birthday 
after  our  party  had  been  for  some  time  in  Paris. 


THE  TREATY  SAVED  235 

Returning  home,  Mr.  John  Davis  studied  law.  Pre- 
sident Grant,  in  1874,  selected  him  for  Clerk  of 
the  Court  of  Commissioners  of  Alabama  Claims, 
a  post  demanding  superior  executive  ability.  This 
office  Mr.  Davis  filled  admirably.  In  1882  he  be- 
came Assistant  Secretary  of  State.  He  was  made, 
in  1885,  a  Judge  of  the  Court  of  Claims.  Here  he 
gained  reputation  hi  a  series  of  opinions  dealing 
with  the  principles  involved  in  adjudicating  upon 
the  French  Spoliation  Claims.  A  gentleman  of  fine 
social  qualities,  and  of  a  delightful  bearing,  Judge 
Davis  had  won  a  host  of  friends,  who  lamented  his 
early  death,  at  Washington,  in  1902. 

But  to  return  to  our  narrative  of  events.  The 
reader  of  the  preceding  chapter  must  be  impressed 
with  the  fact  that  the  opening  of  the  conference  was 
marked  by  an  intense  anxiety  on  the  part  of  every  in- 
dividual present,  —  an  anxiety  that  was  felt  in  full 
force  at  Washington  and  London,  since  both  capitals 
believed  that  what  should  be  said  at  this  juncture 
might  even  decide  a  question  of  peace  or  war.  The 
doors  were  closed  to  all  persons  other  than  those 
officially  in  attendance.  Outside,  at  the  entrance  of 
the  Hotel  de  Ville,  there  stood  hi  waiting  a  band 
of  reporters,  representing  the  great  journals  of  Eng- 
land and  of  the  United  States,  as  well  as  Contin- 
ental newspapers,  —  trained  men,  alert  and  eager  to 
catch  the  first  word  that  they  could  flash  over  the 
wires  to  an  expectant  world. 


236  THE  GENEVA  TRIBUNAL 

The  scene  presented  has  ever  since  been  indelibly 
fixed  in  my  memory.  I  shall  not  attempt  further  to 
describe  it.  Every  man  realized  the  gravity  of  the 
occasion.  It  does  not  seem  possible  to  add  to  the 
measure  of  dignity  that  a  free  people  are  accustomed 
to  witness  in  a  high  court  sitting  in  bane,  whether 
in  England  or  America;  but  the  Tribunal  at  Geneva 
possessed  the  features  of  a  quasi-diplomatic  body,  as 
well  as  those  belonging  to  a  high  court  of  the  realm. 
We,  who  sat  within  the  bar  beheld  in  each  one  of  the 
five  dignitaries  facing  us  the  representative  of  a  na- 
tion. In  a  certain  sense,  too,  a  great  people  —  one 
of  the  greatest  upon  earth  —  were  here,  about  to  be 
brought  to  trial.  No  wonder  that  the  proceedings 
now  to  be  entered  upon  by  eminent  judges  of 
diverse  nationalities  and  speech,  should  wear  an 
ah-  of  solemnity  greater  than  that  which  is  wont  to 
characterize  the  deliberations  of  the  highest  judi- 
cial tribunal  of  any  single  country.  Yet,  notwith- 
standing the  imminence  of  a  mighty  struggle,  there 
prevailed  a  stillness  and  a  calm,  and  one  could  note  a 
demeanor  of  unaffected  courtesy  on  the  part  of  those 
whose  duty  it  was  to  speak  that  was  reassuring, 
for  it  seemed  after  all  to  declare  in  so  many  words, 
"Here  are  we  —  a  company  of  gentlemen:  Noblesse 
oblige." 

Mr.  Davis  arose,  and  presented  in  duplicate  a 
printed  Argument,  in  English  (and  for  his  conven- 
ience a  French  translation  of  the  same),  to  each  Arbi- 
trator. All  eyes  were  turned  upon  Lord  Tenterden, 


THE  TREATY  SAVED  237 

who,  in  the  ordinary  course  of  procedure,  would  have 
followed  this  act  by  delivering  in  like  manner  the 
Argument  of  Great  Britain.  The  British  Agent, 
while  a  most  faithful  official  and  excellent  man,  had 
not  the  presence  of  Mr.  Davis.  Lord  Tenterden's 
manner  was  not  in  the  least  degree  imposing.  In  a 
plain  business  way  Tenterden  offered  a  note,  express- 
ing regret  that  the  "  differences  "  between  the  Gov- 
ernments had  not  yet  been  "  removed, "  and  asking 
that  the  Tribunal  adjourn  for  a  period  long  enough 
to  enable  a  supplementary  convention  to  be  con- 
cluded and  ratified  between  the  two  countries. 

The  thought  flashed  into  our  minds  that,  if  such 
an  adjournment  were  taken,  it  could  have  only  one 
meaning  —  a  rupture  of  the  Treaty. 

Mr.  Davis  announced"  that  he  was  unable  to  state 
what  the  views  of  his  Government  would  be,  until  he 
knew  for  how  long  a  time  an  adjournment  was  asked. 
Lord  Tenterden,  in  reply,  named  eight  months.  Mr. 
Davis,  saying  that  he  would  have  to  learn  by  tele- 
graph the  views  of  his  Government,  asked  an  ad- 
journment for  two  days,  till  Monday,  the  17th.  The 
request  was  granted,  and  the  conference  adjourned. 
It  was  all  over  in  a  few  minutes.  No  actual  rupture, 
—  yet!  A  breathing-spell,  and  a  possible  chance  to 
save  the  Treaty. 

Mr.  Fish  and  General  Schenck  with  admirable 
skill  had  brought  the  subject-matter  of  the  "  indirect 
claims  "  safely  down  to  the  date  of  the  opening  of  the 
conference.  The  American  Minister  had  discharged 


238  THE  GENEVA  TRIBUNAL 

his  trying  duties  with  an  exemplary  patience,  cour- 
age, and  tact.  His  intimate  and  cordial  relations 
with  Lord  Granville  were  an  important  factor  in 
preserving  harmony.  It  rested  now  with  those  at 
Geneva  to  ascertain  if  they  by  any  possible  means 
could  come  together  and  avert  disaster.  Already  Mr- 
Davis  had  suggested  to  Mr.  Adams  that  the  Tri- 
bunal should  pass  upon  the  indirect  claims  in  advance 
of  the  other  claims.  To  this  proposal  Mr.  Adams 
had  replied  that  the  same  idea  had  occurred  to  him. 
The  difficulty,  as  the  reader  can  readily  understand, 
was  that  the  British  Government  denied  the  right  of 
the  Tribunal  at  all  to  entertain  the  question  of  the 
indirect  claims,  even  though  it  was  sure  to  decide 
against  making  them  a  foundation  for  damages. 

Even  at  the  darkest  moment  the  Agent  of  the 
United  States  did  not  lose  heart.  On  the  contrary, 
he  stood  firm  in  upholding  the  right  of  his  Govern- 
ment to  have  the  validity  of  these  claims  passed 
upon  by  the  Arbitrators.  We  see  him  immediately 
upon  the  adjournment  of  the  conference  writing  to 
Mr.  Fish  as  follows:  — 

"  I  have  myself  suggested  to  Mr.  Adams  that  if  the 
Arbitrators  are  satisfied  of  the  justice  of  our  position  on 
the  question  of  jurisdiction,  they  should,  in  view  of  the 
position  of  our  Government,  take  the  bull  by  the  horns, 
and  pass  upon  the  indirect  claims  themselves,  in  advance 
of  the  other  claims. 

"  He  told  me  that  he  had  no  doubt  himself  that  the  indi- 
rect claims  were  within  the  scope  of  the  Treaty;  and  that 


THE  TREATY  SAVED  239 

he  had  thought  of  the  same  way  of  cutting  the  knot,  and 
letting  the  Arbitration  go  on.  It  would  be  a  way  most 
unpalatable  to  England,  but  if  there  is  pluck  enough  in 
the  Tribunal,  it  might  be  done.  I  have  not  much  faith 
that  it  will  be. 

"  The  Arbitrators  are  at  present  on  the  other  track, 
and  are  trying  to  secure  the  assent  of  England  to  their 
consideration  of  the  subjects  which  are  admitted  to  be 
within  their  jurisdiction."  1 

The  afternoon  of  Saturday  and  the  better  part  of 
the  next  day  were  taken  up  with  long  and  busy  con- 
ferences between  Agent  and  Counsel,  as  well  as  an 
interview  with  Mr.  Adams  at  his  villa.  A  diary 
kept  by  Bancroft  Davis  (now  in  the  archives  of 
the  Department  of  State)  preserves  a  detailed  ac- 
count of  the  successive  steps  whereby  at  last  the 
parties  succeeded  in  reaching  a  ground  upon  which 
they  could  stand.  The  gravity  of  the  perils  in- 
volved, the  strain  upon  our  representatives  charged 
with  the  duty  of  moving  with  wisdom,  caution,  and 
supreme  tact,  and  the  happy  issue  at  last  crowning 
their  loyal  efforts  —  all  combine  to  render  the  story 
of  this  procedure  one  of  the  most  interesting,  as  it 
always  will  be  one  of  the  most  important,  in  the  an- 
nals of  American  diplomacy.  These  considerations 
warrant  a  reproduction  here  of  the  entire  memoran- 
dum.2 

1  MS.  Letter,  Davis  to  Fish,  15  June,  1872,  Archives,  Department 
of  State. 

2  Mr.  Davis  has  told  concisely,  yet  with  a  masterly  touch,  the 
story  of  this  critical  stage  in  the  life  of  the  Treaty  (Mr.  Fish  and  the 


240  THE  GENEVA  TRIBUNAL 

"  June  15,  1872.  At  the  Conference,  at  the  Hotel  de 
Ville,  Mr.  Adams  again  called  my  attention  to  his  desire 
that  I  should  see  Lord  Tenterden,  and  obtain  his  consent 
that  the  Tribunal  should  proceed  with  the  examination  of 
the  general  questions  affecting  the  liability  of  England  for 
the  direct  damages,  leaving  the  disputed  matters  to  be 
arranged  between  the  two  Governments.  I  replied  that  I 
did  not  suppose  that  the  British  Government  would  con- 
sent to  have  the  Arbitrators  go  on  with  the  British  Argu- 
ment un filed;  or,  that  they  could  sustain  themselves  in 
Parliament,  if  they  attempted  it.  I  suggested,  however, 
that  if  he  desired  anything  said  to  the  other  side  on  this 
subject,  it  should  be  done  through  Mr.  Evarts  and  Sir 
Roundell  Palmer.  He  assented  and  spoke  to  Mr.  Evarts. l 

"  Baron  d'ltajuba  next  spoke  to  me  on  the  same  sub- 
ject, and  expressed  the  same  wish.  I  told  him  that  we 
would  interpose  no  objection,  but  that  there  was  no 
probability  that  the  English  would  consent  to  do  so.  The 
Baron  expressed  great  regret,  and  said  that  the  course 

Alabama  Claims,  pp.  98-103),  drawing  freely  upon  the  pages  of  this 
diary.  It  is  eminently  proper  (as  I  have  said  above)  that  the  entire 
text  should  be  printed  here.  For  the  privilege  of  making  a  copy  of 
papers  on  file  at  the  Department  of  State,  I  have  to  thank  Mr. 
Secretary  Root;  nor  should  I  forget  to  acknowledge  the  very  oblig- 
ing character  of  the  attentions  shown  me  by  the  head  of  the  Bureau 
of  Archives,  Dr.  John  R.  Buck. 

1  Fitzmaurice,  in  his  Life  of  Granvilk  (1905),  prints  a  letter  from 
Granville  to  Bright,  to  be  kept  secret,  saying  that  the  Arbitrators 
"will  on  Wednesday  declare  extrajudidally  "  that  the  indirect  claims 
cannot  be  entertained  by  them.  To  this  the  date  of  June  12,  1872, 
is  assigned.  The  "  12  "  is  evidently  a  misprint  —  probably  for  "  17  " 
(vol.  ii,  p.  98).  The  statement  by  the  author  on  page  99  that  "  the 
American  agents  (sic)  then  formally  withdrew  the  indirect  claims 
from  the  cognizance  of  the  Tribunal,"  has  no  foundation  in  fact. 


THE  TREATY  SAVED  241 

things  were  taking  was  going  to  put  the  Arbitrators  to 
great  personal  inconvenience.  I  said  that  I  could  appre- 
ciate that,  and  would  be  glad  to  help  them,  if  I  could,  but 
the  difficulty  was  none  of  our  making;  and  I  added  that 
I  could  see  but  one  way  out  of  it;  which  was  for  the  Arbi- 
trators to  take  up  the  indirect  claims  at  once,  and  pass 
upon  them  while  the  motion  to  adjourn  was  pending. 

"  In  the  course  of  the  afternoon  I  saw  Mr.  Adams 
again.  He  asked  me  if  I  had  seen  Lord  Tenterden  about 
assent  to  the  taking  up  of  the  direct  claims.  I  replied 
that  I  had  not,  because  I  supposed  that  Mr.  Evarts  was 
to  have  charge  of  that  negotiation.  He  said  he  hoped 
I  would  see  Lord  Tenterden  on  the  subject. 

"  Accordingly,  I  went  to  the  Hdtel  des  Bergues,  in  the 
evening,  and  found  Lord  Tenterden  at  home. 

"  I  told  him  at  once  what  Mr.  Adams  had  said  to  me, 
and  I  added  that  Baron  d'ltajuba"  had  expressed  the  same 
wish.  I  said  that  I  came  to  him  at  the  request  of  Mr. 
Adams,  and  not  officially;  that  my  Government  had  no 
preferences  to  express  in  the  matter,  but  that  personally  I 
could  not  disregard  the  strongly  expressed  wishes  of  the 
American  and  the  Brazilian  Arbitrator.  He  said  that  he 
was  only  a  conduit  to  carry  the  instructions  from  his 
Government,  and  that  he  had  none  on  this  subject. 

"  He  added:  '  I  may  as  well  tell  you  frankly  that  my 
instructions  are  positive,  and  limited  —  to  secure  the 
adjournment  we  have  asked  for,  or  to  retire;  and  Sir 
Roundell  Palmer  has  been  sent  with  me,  to  advise  me  on 
every  step.1 1 

1  Sir  Roundell  had  expected  to  return  immediately  to  England  — 
and  he  expressed  disappointment  at  not  being  able  to  do  BO.    Me- 
,  vol.  1,  p.  238. 


242  THE  GENEVA  TRIBUNAL 

"  I  replied  that  I  had  nothing  to  do  with  his  instruc- 
tions, and  did  not  desire  to  know  them  until  it  should  be- 
come necessary  to  do  so;  that  at  present  all  I  wanted  to 
know  was  his  individual  opinion  upon  Mr.  Adams's  pro- 
position. He  replied: '  I  will  tell  you  frankly  that  I  do  not 
believe  that  it  would  be  entertained  by  the  Ministry/ 
'What  does  Mr.  Adams  want?'  he  asked.  I  said:  'He 
wants  to  secure  to  these  Arbitrators  the  opportunity  of 
doing  what  they  are  sent  here  to  do.'  '  If  he  means  busi- 
ness,' he  replied,  'he  must  go  further  than  he  has  yet 
gone.'  '  What  do  you  mean  by  going  further? '  I  asked. 
He  replied:  'I  mean  that  he  must  have  the  indirect 
claims  rejected  by  the  Arbitrators,  if  they  are  (as  I  un- 
derstand them  to  be)  of  the  opinion  that  they  should 
be  rejected.' 

"  A  conversation  ensued,  in  which  I  ascertained  that  he 
thought  it  probable  that  the  neutral  Arbitrators  would  be 
willing  to  say  that  Great  Britain  could  not  be  held  re- 
sponsible for  the  indirect  claims,  and  he  thought  that  the 
manifestation  of  such  an  opinion  would  probably  induce 
the  United  States  to  instruct  their  Agent  to  say  that  they 
did  not  desire  to  have  these  claims  further  considered  by 
the  Tribunal.  He  added  that  there  was  a  strong  feeling 
in  England  that  the  United  States  expected  that  the  Arbi- 
trators would,  while  rejecting  these  classes  of  claims 
specifically,  let  them  have  weight  when  considering  the 
other  classes,  and  they  would  desire  some  instructions  to 
answer  that  objection,  however  unreasonable. 

"  When  I  was  fully  possessed  of  his  idea  I  saw  Mr. 
Waite  and  Mr.  Evarts  (Mr.  Gushing  had  by  this  time 
retired),  and  told  them  what  had  taken  place." 

The  reader  may  estimate  for  himself  what  a  piece 


THE  TREATY  SAVED  243 

of  good  fortune  it  was  that  both  countries  were  re- 
presented by  men  as  Agents  who  had  learned  to  put 
trust  hi  each  other.  As  we  have  already  seen,  Mr. 
Davis  upon  meeting  Lord  Tenterden  at  Washing- 
ton, soon  came  to  regard  him  as  a  man  in  whom 
implicit  confidence  could  be  reposed,  while  on  the 
other  hand  Tenterden  both  liked  and  trusted  Ban- 
croft Davis. 
The  Agent  of  the  United  States  continues:  — 

"  I  had  scarcely  gone  to  bed  when  I  was  aroused  by  a 
knocking,  and  found  Lord  Tenterden  at  the  door.  He 
said  that  as  soon  as  I  had  left  he  had  seen  Sir  Roundell 
Palmer,  and  had  told  him  what  had  taken  place.  He  said 
that  Sir  Roundell  had  stated  three  points  which  would 
have  to  be  borne  in  mind,  if  any  such  step  as  had  been 
suggested  by  Lord  Tenterden  should  be  taken.  He  said 
that  he  had  taken  these  points  down  in  writing,  and  that 
although  he  could  not  give  me  a  copy  of  them,  I  could 
take  one  in  pencil  from  his  dictation,  if  I  pleased.  I  did 
so.  They  read  as  follows:  — 

"  1.  That  the  Arbitrators  cannot  give  any  judgment  on 
the  indirect  claims,  as  not  being  submitted  to  them  by 
both  parties;  and  that,  therefore,  any  expression  of  opin- 
ion upon  them,  at  the  present  time,  would  be  simply 
extrajudicial. 

"  2.  That  the  British  Government  having  expressly  re- 
fused to  allow  the  indirect  claims  to  be  adjudicated  upon 
by  the  Tribunal,  it  would  not  be  consistent  with  the  duty 
of  the  British  Arbitrator  to  take  any  part,  directly  or 
indirectly,  in  any  expression  of  opinion  on  the  subject. 

"  3.  That  any  expression  of  opinion  on  the  subject 


244         THE  GENEVA  TRIBUNAL 

would  not  be  binding  upon  either  of  the  two  Govern- 
ments, unless  assented  to  by  both. 

"  When  I  had  read  them  I  said  that  there  were  several 
matters  in  them  that  would  require  notice  from  us,  if  they 
were  to  be  regarded  as  communicated  from  him  to  me. 
He  said  they  were  not  to  be  so  regarded;  that  they  were 
the  views  of  Sir  Roundell  Palmer,  communicated  to  him 
for  his  information,  and  that  he  had  taken  them  down  in 
pencil,  in  order  that  he  might  make  sure  of  what  he  was 
going  to  tell  me  for  Mr.  Adams's  information." 

This  procedure  must  be  set  down  as  having  been 
a  good  day's  work.  There  was  displayed  a  strong 
disposition  on  Lord  Tenterden's  part  to  arrive  at  an 
agreement,  if  possible.  The  British  Government  are 
simply  refusing  to  allow  the  Arbitrators  to  say 
whether  the  " indirect  claims"  were  within  the  sub- 
mission of  the  Treaty;  but  now  at  last  they  do  go 
far  enough  to  admit  that  if  the  Arbitrators  should 
express  an  opinion,  it  would  be  extrajudicial.  Lo! 
a  rift.  Suppose  they  do  announce  an  extrajudicial 
opinion  —  what  then?  We  shall  see. 

Early  on  the  morning  of  Sunday,  16  June,  Mr. 
Davis  met  the  Counsel,  and  submitted  to  their  con- 
sideration the  three  points  that  Sir  Roundell 
Palmer's  ingenuity  had  raised.  He  accompanied  the 
submission  with  comment  as  to  each  point,  as  fol- 
lows:— 

"  1.  It  is  conceded  that  any  expression  of  opinion  upon 
these  claims  by  the  Tribunal,  at  the  present  stage  of  the 
Arbitration,  will  be  extrajudicial.  The  Treaty  provides 


THE  TREATY  SAVED  245 

for  only  one  judgment  by  the  Tribunal  regarding  dam- 
ages to  be  rendered  for  a  sum  in  gross,  after  all  pre- 
vious questions  named  in  the  Treaty  shall  be  determined. 
But  these  claims  are  regarded  as  now  properly  before  the 
Tribunal  by  the  agreement  of  both  parties;  and  it  is 
believed  to  be  the  duty  and  the  right  of  the  Tribunal 
to  pass  upon  them,  unless  they  shall  be  withdrawn  by 
the  United  States. 

"2.  As  this  point  refers  only  to  the  course  which  the 
British  Arbitrator  may  take,  it  calls  for  no  remark. 

"  3.  Each  Government  will  be  at  liberty,  after  an  ex- 
pression of  opinion  by  the  Tribunal,  to  take  such  course  as 
it  deems  consistent  with  its  duty  to  itself  and  to  the  other 
party." 

The  Counsel  returned  this  paper  to  Mr.  Davis, 
and  expressed  their  concurrence  in  the  views  pre- 
sented. Mr.  Davis  continues:  — 

"  It  was  thought  best,  however,  that  Mr.  Evarts  should 
see  Sir  Roundell  Palmer,  and  call  his  attention  to  the  fact 
that  his  third  point  contains  everything  necessary  for  the 
protection  of  either  Government;  and  suggest  whether 
the  points  on  which  the  Governments  must  necessarily 
disagree,  had  not  better  be  regarded  as  not  having  been 
said.  He  did  see  him,  later  in  the  evening,  and  Sir 
Roundell  is  understood  to  concur  in  the  opinion  that  the 
third  point  is  all  which  he  now  desires  to  stand. 

"  As  soon  as  the  Counsel  had  completed  their  examina- 
tion of  Sir  Roundell's  points  and  my  remarks,  Mr.  Evarts 
and  I  went  with  them  to  Mr.  Adams.  I  communicated  to 
Mr.  Adams  in  full  what  had  taken  place  between  Lord 
Tenterden  and  myself.  I  stated  to  him  that  I  believed 


246  THE  GENEVA  TRIBUNAL 

this  to  be  the  only  way  of  saving  the  Treaty,  —  that,  in 
my  judgment,  a  long  adjournment  would  end  in  its  rup- 
ture, —  that,  even  if  it  should  not  so  end,  it  would  be  very 
inconvenient  for  the  members  of  the  Tribunal,  who  were 
now  here  and  ready  to  go  on  with  their  work,  to  come 
back  at  the  end  of  several  months;  and  that  I  felt  that  it 
was  a  duty  to  them,  as  well  as  to  ourselves,  to  spare  no 
effort  which  could  honorably  be  made,  to  have  the  Arbi- 
tration go  on. 

"Mr.  Adams  replied  that  he  agreed  that  an  adjourn- 
ment as  asked  for  would  end  in  a  rupture,  and  that  he  was 
willing  to  do  all  in  his  power  to  prevent  it.  He  said  that  he 
had  had  some  conversation  with  Mr.  Fish,  before  leaving 
Washington,  in  which  Mr.  Fish  had  told  him  that  he  was 
willing  to  have  the  indirect  claims  decided  adversely,  and 
that  he  had  said  to  Mr.  Fish  that  in  his  judgment  they 
ought  to  be  so  disposed  of  —  that  Mr.  Fish  had  felt  so 
much  interest  in  the  matter  that  he  had  sent  a  special  mes- 
sage to  him  in  Boston,  by  Mr.  Boutwell,  to  see  Sir  Alex- 
ander Cockburn,  in  London,  and  endeavor  to  arrange 
some  way  to  have  it  done;  that  he  had  seen  some  influen- 
tial persons  in  London  on  the  subject,  but  had  not  seen 
Sir  Alexander,  because  he  did  not  think  him  the  best  per- 
son to  see  for  that  purpose;  that  he  had  also  seen  General 
Schenck,  and  that  General  Schenck,  who  was  then  en- 
deavoring to  arrange  the  matter  upon  the  basis  of  an  in- 
terchange of  notes,  had  handed  him  a  paper  containing 
the  substance  of  a  declaration,  which  at  that  time  it  was 
thought  might  be  desired  from  the  Arbitrators  when  they 
should  assemble. 

"Mr.  Adams  read  a  portion  of  this  draft;  from  which 
Mr.  Evarts  and  I  gathered  the  opinion  that  it  might  be 


THE  TREATY  SAVED  247 

construed  to  imply  a  doubt  of  the  jurisdiction  of  the  Tri- 
bunal over  the  indirect  claims;  and  we  so  stated  to  Mr. 
Adams.  He  said  at  once  that  he  had  no  doubt  himself  on 
that  point,  that  he  thought  them  clearly  within  their 
jurisdiction.  Mr.  Evarts,  however,  called  his  attention  to 
some  points  in  the  Argument  of  the  Counsel  bearing  upon 
this,  and  laying  the  foundation  for  the  contemplated 
action  of  the  Tribunal.  It  was  then  understood  by  us  that 
Mr.  Adams  was  to  see  Count  Sclopis,  and  to  ascertain 
whether  the  proposed  action  would  probably  be  taken." 

In  the  afternoon,  it  seems,  Mr.  Adams  called  and 
handed  to  Mr.  Davis  a  paper  which  set  out  the  dif- 
ferences at  issue,  and  that  in  the  opinion  of  the 
Arbitrators  it  was  inadvisable  to  adjourn. 

Mr.  Davis  continues  by  saying  that  this  paper 
states  that  it  was 

"  needless  for  the  Arbitrators  to  do  more  than  declare 
that  they  have  consulted  together  and  are  of  opinion  that 
this  Tribunal  under  [must  decline  to  assume  any  jurisdic- 
tion over  a  question  which  is  not  fully  recognized  by 
both  parties  as  legitimately  within  the  powers  conferred 
upon  them  by  the  terms  of  the  Treaty.  But  if  any  other 
reason  were  wanting  to  determine  this  point,  the  Arbitra- 
tors will  not  refrain  from  expressing  their  opinion  that, 
if  such  claims  as  have  been  herein  described  were  to  be 
pressed  and  insisted  upon  by  the  Government  of  the 
United  States  as  constituting  under  the  public  law  good 
foundation  for  an  award  of  compensation  in  money  to  be 
made,  this  Tribunal  would  have  been  constrained  in  de- 
ference to]  what  it  holds  to  be  the  recognized  rules  of 
international  law  applicable  to  such  cases  should  it  exer- 


248          THE  GENEVA  TRIBUNAL 


rise  jurisdiction  mil  be  bound  to  decide  that  Great  Britain 
could  not  in  their  opinion  be  made  responsible  in  damages 
therefor. 

"Although  greatly  disappointed  in  this  paper,"  con- 
tinues Mr.  Davis,  "  I  expressed  no  opinion  about  it  to  Mr. 
Adams,  but  simply  said  that  I  would  carry  it  before  the 
Counsel  and  see  him  again  about  it.  I  did  at  once  place  it 
in  General  Cushing's  hands  with  pencil  notes  indicating 
amendments  which  I  thought  absolutely  essential.  The 
principal  amendments  were  the  exclusion  of  the  passage 
indicating  purpose  not  to  assume  jurisdiction  and  making 
the  expression  of  opinion  only  indicative  of  what  they 
would  do  should  they  proceed  to  consider  it.  The  pencil 
marks  are  indicated  on  this  paper  also  in  red  ink.  *  They 
are  not,  however,  all  that  I  desired  to  make,  —  only  all 
that  I  had  time  to  indicate.  I  further  said  that  I  would 
suggest  that,  in  any  new  draft,  the  Counsel  should  try  to 
preserve  as  far  as  possible  the  form  which  Mr.  Adams  had 
adopted,  so  as  to  limit  the  discussions  with  him  to  the 
fewest  possible  subjects,  —  but  that,  as  the  draft  stood, 

1  It  will  be  perceived  that  our  Agent  proposed  to  insert  the  words 
Italicized,  and  to  strike  out  all  of  the  text  included  between  the 
brackets.  Mr.  Davis  sought  to  obtain  from  the  Tribunal  a  deter- 
mination to  the  effect  that  an  application  of  the  recognized  rules  of 
International  law  would  at  once  dispose  of  the  indirect  claims. 

The  Archives  of  the  Department  of  State,  it  may  well  enough  be 
added,  contain  a  confidential  letter  from  Mr.  Davis  to  Secretary  Fish, 
22  May,  1872,  setting  forth  at  length  the  history  of  the  indirect 
claims,  and  making  plain  the  reasons  why  they  had  been  put  for- 
ward in  the  case.  Our  Agent  took  this  step,  he  explains,  that  a  con- 
nected statement  of  the  facts  might  go  upon  the  record,  in  justifi- 
cation of  his  action.  "It  would  have  been,"  he  concludes,  " a  cause 
for  grave  censure,  if  these  claims  had  not  been  presented  as  they 
were." 


THE  TREATY  SAVED  249 

it  could  not  be  accepted  by  us,  and  would  end  in  breaking 
up  the  Arbitration.  All  the  Counsel  agreed  with  me. 

"  Soon  after  Mr.  Adams  had  left,  Lord  Tenterden  came 
in.  I  told  him  that  the  Counsel  would  insist  upon  some 
notice  being  taken  of  the  objectionable  language  in  Sir 
Roundell  Palmer's  note,  unless  it  was  modified,  and  that 
Mr.  Evarts  was  to  see  Sir  Roundell  this  afternoon,  on  the 
subject.  Tenterden  said  that  he  thought  that  would  be 
the  best  way  —  that  he  did  not  want  anything  to  do 
with  the  matter  personally,  as  it  was  entirely  out  of  the 
range  of  his  instructions. 

"  June  17th.  At  an  early  hour,  this  morning,  General 
Cushing  informed  me  that  the  Counsel  had  agreed  upon 
a  paper  to  be  proposed  to  Mr.  Adams,  as  a  substitute  for 
the  one  he  had  handed  me  yesterday.  It  is  as  follows:  — 

"  *  The  attention  of  the  Arbitrators  has  been  called  to 
the  fact  of  a  difference  of  opinion  between  the  parties  pre- 
senting themselves  before  them  in  regard  to  the  construc- 
tion of  the  terms  of  the  Treaty  under  which  they  have 
been  constituted  a  Tribunal  in  their  application  to  one 
particular  point  in  the  contention. 

"  '  The  existence  of  this  difference  of  opinion,  and  the 
hope  that  negotiations  now  pending  between  the  two 
Governments  for  the  solution  of  this  difficulty,  may,  if 
further  time  were  given  for  that  purpose,  result  in  such 
solution, —  have  been  made  the  basis  of  a  request  on  the 
part  of  Her  Majesty's  Government  to  the  Tribunal  to  ad- 
journ the  meetings  of  the  Tribunal  for  a  period  of  eight 
months. 

" '  It  appears  to  the  Arbitrators  to  be  unadvisable  for 
many  reasons  to  accede  to  so  long  a  period  of  adjourn- 
ment; and,  without  passing  upon  the  application  to  that 


250  THE  GENEVA  TRIBUNAL 

end,  on  the  part  of  Her  Britannic  Majesty,  it  has  seemed 
to  them  probable  that  a  declaration  which  they,  upon  due 
consultation,  are  prepared  to  make  respecting  the  sub- 
ject of  difference  between  the  parties  which  forms  the 
occasion  for  the  request  of  adjournment,  may  remove  the 
necessity  for  the  pending  application. 

" '  The  Arbitrators  are  of  the  opinion  that  such  claims 
as  those  for  the  National  losses  stated  in  the  Case,  pre- 
sented on  the  part  of  the  Government  of  the  United 
States,  to  have  been  sustained  by  the  loss  in  the  transfer 
of  the  American  commercial  marine  to  the  British  flag; 
the  enhanced  payment  of  insurance;  the  prolongation  of 
the  war,  and  the  addition  of  a  large  sum  to  the  cost  of  the 
war  and  the  suppression  of  the  rebellion,  do  not  consti- 
tute in  the  public  law  good  foundation  for  an  award  of 
compensation  in  money;  and  this  Tribunal  would  be  con- 
strained, in  deference  to  what  it  holds  should  be  the 
recognized  rules  of  international  law  applicable  to  such 
cases,  to  decide  that  Great  Britain  would  not  in  the  opin- 
ion of  the  Arbitrators  be  made  responsible  in  damages 
therefor. 

" '  The  Tribunal  does  not  assume  to  declare  this  opinion 
as  a  present  exercise  of  jurisdiction  over  the  subject  of 
these  claims,  the  possession  of  such  jurisdiction  by  this  Tri- 
bunal under  the  terms  of  the  Treaty  being  the  matter  in 
difference  between  the  two  Governments,  which  has  been 
brought  to  the  notice  of  the  Arbitrators,  and  concerning 
which  they  now  offer  no  opinion;  nor  does  the  Tribunal 
in  declaring  this  opinion  assume  that  it  possesses  under 
the  terms  of  the  Treaty  the  jurisdiction  to  make  a  defin- 
itive disposition  in  advance  of  its  award  of  this  separate 
question,  were  its  jurisdiction  over  it  not  the  subject  of 


THE  TREATY  SAVED  251 

contention  between  the  parties.  The  Arbitrators  have, 
however,  thought  it  their  duty  to  lay  before  the  parties 
this  expression  of  the  views  they  have  formed  upon  the 
question  of  public  law  involved,  and  to  which  their  final 
award  must  be  expected  to  adhere.' 

"  With  this  paper  Mr.  Evarts  and  I  drove  out  to  see  Mr. 
Adams.  Mr.  Evarts  read  it  to  him,  and  explained  to  him 
the  changes  from  his  draft,  and  why  they  had  been  made. 
We  had  to  wait  a  few  minutes  before  being  able  to  do  so, 
as  Mr.  Staempfli  was  with  Mr.  Adams  when  we  arrived. 

"  Mr.  Adams  heard  what  Mr.  Evarts  had  to  say  (I  took 
but  little  part  in  the  conversation  except  to  acquiesce  in 
what  was  said  by  Mr.  Evarts)  and  said  that,  so  far  as  he 
could  judge  from  hearing  it  read,  he  could  substantially 
adopt  the  paper.  He  said  that  both  Baron  d'ltajuba  and 
Mr.  Staempfli  were  much  disturbed  by  the  attitude  of 
affairs,  and  he  thought  that  they  would  be  disposed  to 
join  in  the  declaration.  He  proposed  to  go  to  Count 
Sclopis  before  the  meeting  of  the  Tribunal,  at  two. 

"  In  about  two  hours  Mr.  Adams  came  to  me  to  say  that 
he  had  seen  Count  Sclopis,  and  had  laid  the  paper  before 
him,  and  that  the  Count  assented  to  it.  He  said  that  he 
(Mr.  Adams)  had  been  obliged  to  make  some  changes  in 
it  to  make  it  conform  to  his  own  views.  [I  asked  him  what 
the  changes  were.  He  said  that  they  were  mostly  unim- 
portant. One  was  important.  The  statement  in  the  draft 
submitted  to  him  was  that  according  to  principles  that 
should  be  recognized  as  public  law.  He  had  altered  this, 
as  he  believed  that  the  principles  are  now  recognized.  I 
told  him  that  I  was  very  sorry  that  he  felt  it  his  duty  to 
do  so.  I  may  add  that  I  think  that  he  was  not  under  the 
necessity  of  making  a  change  which  will  be  construed  by 


252  THE  GENEVA  TRIBUNAL' 

the  British  adversely  to  his  country,  and  which  I  cer- 
tainly do  not  agree  to,  and  which  others  of  much  greater 
authority  than  I  would  also  dissent  from.] 

"  Soon  after  this  we  went  into  the  fourth  Conference  of 
the  Tribunal.  The  Protocol  of  the  previous  Conference 
was  read  in  form,  as  it  had  been  agreed  to  by  Lord  Ten- 
terden  and  me,  adding  to  it  the  words:  'The  Tribunal 
decided  that  the  Protocols  should  be  signed  by  the 
President  and  Secretary  of  the  Tribunal,  and  by  the 
Agents  of  the  two  Governments/  l 

"  Count  Sclopis  then  turned  to  me  and  said:  'Vousavez 
le  par  ok,  Monsieur.'  I  replied,  'Messieurs,  Je  n'ai  pas 
encore  recu  de  mon  Gouvemement  des  instructions  positives 
touchant  la  demande  de  Lord  Tenterden  pour  un  ajourne- 
ment  du  Tribunal.  Je  sugg&re  que  le  Tribunal  s'ajourne 
encore  jusqu'a  merer edi,  le  19  Juin.'  Lord  Tenterden,  to 
whom  Count  Sclopis  then  turned,  said:  'Je  ne  puis  faire 
aucune  objection,'  and  the  order  for  adjournment  to 
Wednesday  was  at  once  made. 

"  I  returned  at  once  to  the  hotel,  after  first  preparing 
the  Protocol  for  this  meeting,  and  sent  to  Mr.  Fish  the 
following  telegram,  which  had  been  previously  prepared 
by  me,  and  amended  and  approved  by  the  Counsel :  — 

" '  Conference  adjourned  to  Wednesday.  Arbitrators 
will  probably,  in  advance  of  time  indicated  in  Treaty, 
express  their  opinion  that  claims  for  increased  insurance, 
transfer  of  marine,  and  prolongation  of  war,  do  not  con- 
stitute in  public  law  good  foundation  for  an  award  of 
compensation  in  money.  Should  that  be  done  Counsel 

1  It  will  be  noted  that  the  Agent  of  the  United  States  signs  the 
Protocols  first,  our  Government  having  been  the  first  named  in  the 
Treaty. 


THE  TREATY  SAVED  253 

will  advise  me  in  writing  that  after  such  an  intimation 
of  opinion,  the  United  States  cannot  ask  the  Tribunal 
further  to  consider  these  claims  in  making  its  award.  It 
is  expected  that  on  this  footing  the  regular  course  of  the 
Tribunal,  without  adjournment,  may  be  maintained.  I 
agree  in  the  policy  and  propriety  of  such  a  course,  and 
shall  telegraph  more  fully  asking  for  instructions.' 

"  June  18, 9  A.  M.  Just  as  I  was  about  to  send  this  paper, 
I  learned  that  at  the  Conference  yesterday  the  Arbitrat- 
ors unanimously  agreed  in  principle  upon  the  disposition 
to  be  made  of  the  three  classes  of  indirect  claims."  1 

The  Arbitrators  arrived  at  their  conclusion  on 
Monday.  Sir  Roundell  Palmer  on  Tuesday,  18th, 
handed  in  a  counter-draft  that  differed  but  little  from 
the  wording  proffered  by  the  United  States  —  so 
that  the  Arbitrators  readily  agreed  upon  the  form 
of  what  they  proposed  to  announce.  Lord  Sel- 
borne  has  this  to  say  as  to  the  action  taken  at  this 
period  by  the  British  representatives:  - 

"  During  the  pause  afforded  by  these  adjournments,  Sir 
Alexander  Cockburn  told  me  that  the  idea  of  getting  rid 
of  the  difficulty  by  a  spontaneous  declaration  of  the 
Arbitrators  against  the  indirect  claims  had  been  sug- 
gested by  Mr.  Adams,  and  that  the  rest  of  the  Arbitrat- 
ors were  inclined  to  entertain  it;  and  he  desired  me  to 
consider  in  what  form  it  could  be  done,  so  as  to  leave  the 
position  assumed  by  our  Government  untouched,  with- 
out shutting  the  door  against  its  acceptance  on  the  other 
side.  Accordingly  I  drew  up  a  form  of  declaration,  which 
I  thought  might  be  accepted  on  both  sides,  unless  the 
1  MS.  Archives,  Department  of  State. 


254  THE  GENEVA  TRIBUNAL 

United  States  preferred  the  failure  of  the  Treaty  to  the 
abandonment  of  those  claims;  and  this  being  communi- 
cated by  Sir  Alexander  Cockburn  to  the  other  Arbi- 
trators, was  adopted  by  them."  1 

On  Wednesday,  the  19th,  Count  Sclopis,  on  be- 
half of  all  the  Arbitrators,  made  a  statement,  based 
on  the  application  of  Lord  Tenterden  for  an  ad- 
journment. It  avoided  expressing  an  opinion  upon 
the  point  as  to  the  interpretation  of  the  Treaty 
about  which  the  two  Governments  were  in  differ- 
ence, and  proceeded  to  give  a  reason  why  it  would 
not  be  useful  to  allow  an  adjournment.  It  an- 
nounced that  the  Arbitrators  individually  and  col- 
lectively had  arrived  at  the  conclusion  that  the 
"indirect  claims"  did  not  constitute,  upon  the 
principles  of  international  law  applicable  to  such 
cases,  good  foundation  for  an  award  of  compensation 
or  computation  of  damages  between  nations,  and 
should,  upon  such  principles  be  wholly  excluded 
from  the  consideration  of  the  Tribunal  in  making  its 
award,  even  if  there  were  no  disagreement  between 
the  two  Governments  as  to  the  competency  of  the 
Tribunal  to  decide  thereon. 

The  text  of  this  announcement  is  so  well  worth 
consulting  by  those  who  have  followed  up  the  narra- 
tive of  this  controversy,  that  it  has  been  thought 
well  to  print  it  entire.  It  will  be  found  in  Appendix 
m,  post. 

It  will  be  rerhembered  that  the  British  party  at 

i  Memorials,  vol.  i,  pp.  236-237. 


THE  TREATY  SAVED  255 

Geneva  caused  it  to  be  made  known  that  this  extra- 
judicial  announcement  of  the  Tribunal  would  not  be 
considered  as  binding  upon  the  two  Governments, 
unless  both  should  express  their  consent.  The  Agent 
of  the  United  States  (under  the  advice  of  Counsel  and 
the  instruction  of  Secretary  Fish)  agreed  that  such 
should  be  the  effect.  Mr.  Fish  in  his  cablegram  to 
Mr.  Davis,  22  June,  1872,  conveying  the  direction 
of  President  Grant  that  he  accept  the  declaration  of 
the  Tribunal,  says:  — 

"  This  is  the  attainment  of  an  end  which  this  Govern- 
ment had  in  view  in  the  putting  forth  of  those  claims.  We 
had  no  desire  for  a  pecuniary  award,  but  desired  an  ex- 
pression by  the  Tribunal  as  to  the  liability  of  a  neutral  for 
claims  of  that  character." 1 

The  Secretary  had  ever  kept  in  mind  how  import- 
ant it  was  for  the  United  States,  who  were  likely  to 
be  neutrals  in  time  of  war,  to  have  this  troublesome 
question  settled  by  the  expression  of  an  opinion, 
and  by  the  affirmative  action  of  a  Tribunal,  of 
weight  and  dignity,  that  would  authoritatively  fix 
the  character  of  similar  claims  for  the  future. 

At  the  next  meeting  of  the  Tribunal,  on  25th  June, 
therefore,  Mr.  Davis  stated  that  the  declaration  so 
made  was  "  accepted  by  the  President  of  the  United 
States  as  determinative  of  their  judgment  upon  the 
important  question  of  public  law  involved." 

Then  follows  this  significant  language :  — 

"  The  Agent  of  the  United  States  is  authorized  to  say 
1  Gen.  Arb.,  vol.  ii,  p.  579. 


256  THE  GENEVA  TRIBUNAL 

that,  consequently,  the  above-mentioned  claims  will  not 
be  further  insisted  upon  before  the  Tribunal  by  the  United 
States,  and  may  be  excluded  from  all  consideration  in  any 
award  that  may  be  made."  l 

The  Conference  was  adjourned  to  Thursday,  the 
27th.  The  step  to  be  taken  by  the  British  Govern- 
ment was  awaited  with  not  a  little  concern,  for  until 
Great  Britain  went  upon  the  record  as  likewise  ac- 
cepting the  declaration  of  the  Tribunal,  and  did  so  in 
terms  diplomatically  agreeable  to  the  United  States, 
the  danger  had  not  been  entirely  passed. 

Now,  after  the  lapse  of  so  many  years,  a  bit  of 
secret  history  may  without  harm  be  revealed.  We 
perhaps  shall  gain  an  insight  into  some  of  the  perils 
that  attend  a  procedure  where  the  attempt  is  made 
to  bring  to  an  end  a  difference  between  two  great 
nations  —  a  difference  that  had  woefully  inflamed 
public  feeling,  and  had  threatened  the  breaking  of  a 
solemn  Treaty,  even  to  the  point  of  war. 

On  the  day  (Wednesday,  26th)  before  the  Tribunal 
was  to  convene,  the  Agent  for  the  United  States 
had  received  from  the  Agent  for  Great  Britain  a 
copy  of  the  note  which  the  latter  proposed  to  lay 

1  Gen.  Arb.,  vol.  iv,  p.  21.  The  Nation  had  pilloried  the  Agent  of 
the  United  States,  and  belabored  him  at  a  great  rate  for  his  folly 
in  having  included  the  "  indirect  claims  "  in  the  Case.  The  next 
week,  after  the  last  one  of  these  attacks,  however,  this  newspaper, 
with  unconscious  humor,  enlightened  its  readers  by  saying:  "We 
believe  it  to  be  trustworthy  [information]  that  it  was  Caleb  Gushing, 
and  not  Mr.  Bancroft  Davis,  who  put  in  the  indirect  claims,  and 
that  he  did  it  to  gratify  Mr.  Sunmer."  The  Nation,  New  York,  8 
August,  1872. 


THE  TREATY  SAVED  257 

before  the  Tribunal  on  the  following  day,  as  the  an- 
swer of  the  British  Government  to  the  statement 
made  on  the  25th  by  Mr.  Davis.  As  soon  as  he  could 
get  the  Counsel  together,  Mr.  Davis  laid  before  them 
Lord  Tenterden's  answer,  and  called  their  atten- 
tion to  the  words  "  relinquishment  made  pursuant 
to  their  suggestion."  From  now  on,  I  quote  Mr. 
Davis:  — 

"  I  told  them  I  thought  this  required  some  action  on 
our  part.  They  agreed  with  me,  and  after  consultation 
advised  that  I  should  see  Lord  Tenterden  and  try  to  get 
the  words  out.  If  that  could  not  be  done,  then  we  should 
take  decided  note  of  it,  when  the  paper  should  be  put  in. 
I  sent  word  to  Lord  Tenterden  that  I  wanted  to  see  him 
as  soon  as  he  should  be  up,  and  received  for  answer  that 
he  would  be  ready  in  a  half -hour.  I  was  punctual  to  the 
appointment,  and  was  received  by  Sir  Alexander  Cock- 
burn,  with  whom  I  had  a  few  minutes'  talk.  When  Tenter- 
den came  in,  he  left  us. 

"  I  told  Lord  Tenterden  that  I  would  go  at  once  to  busi- 
ness: that  we  had  found  these  objectionable  words  in  the 
paper  sent  us;  that  while  I  could  not  assume  to  criticise 
the  language  of  a  communication  of  the  British  Govern- 
ment, I  would  say  to  him  as  a  friend,  equally  desirous 
with  himself  of  bringing  these  negotiations  to  a  successful 
result,  that  such  language  was  highly  objectionable  to  the 
United  States;  and  if  left  in  when  he  presented  the  paper 
to  the  Tribunal,  would  call  for  decided  notice  on  our  part. 

"  He  wanted  to  know  what  would  be  said.  I  said  that 
the  language  had  not  yet  been  settled,  but  the  substance 
would  be :  — 


258  THE  GENEVA   TRIBUNAL 

"  1st.  That  the  United  States  had  not  relinquished  the 
claims. 

"  2d.  That  they  had  done  nothing  at  the  suggestion  of 
the  Arbitrators.  That  so  far  from  this  being  true,  we  had 
refused  to  accept  Sir  Roundell  Palmer's  draft  of  the  de- 
claration of  the  Arbitrators  because  it  contained  these 
two  objectionable  ideas  almost  in  the  very  language  in 
which  they  now  reappeared,  and  Sir  Roundell  had  con- 
sented to  take  our  substitution,  without  which  the  nego- 
tiations would  have  been  stranded  at  that  stage. 

"  He  replied  that  the  fact  that  there  had  been  a  discus- 
sion as  to  the  language,  at  a  previous  stage  of  the  nego- 
tiations, did  not  affect  the  present  question;  that  the  lan- 
guage as  now  used  was  recitative,  and  used  by  the  British 
Government,  and  purported  to  show  their  understanding 
of  the  act  of  the  United  States,  and  did  not  assume  to 
relate  to  the  acts  or  opinions  of  the  Tribunal;  and  that  he 
was  unable  to  change  it,  as  he  had  no  instructions  per- 
mitting him  to  do  so. 

"  I  said  that  whether  in  the  mouth  of  the  British  Gov- 
ernment, or  of  the  Tribunal,  the  language  was  equally 
objectionable  when  put  upon  the  record  of  the  Tribunal, 
for  it  assumed  to  state  as  facts,  things  which  were  not 
facts,  and  which  had  once  been  effectually  disposed  of  by 
Mr.  Evarts  and  Sir  Roundell  Palmer.  I  said  that  I  could 
not,  of  course,  presume  to  ask  him  to  take  any  particular 
steps  regarding  his  instructions  from  his  Government,  but 
I  would  say  in  frankness  that,  if  that  statement  went  in, 
I  should  have  to  make  a  counter-statement  which  would 
tend  to  drive  us  apart,  and  I  would  suggest  whether  he 
could  not  telegraph  and  get  discretionary  instructions 
regarding  it. 


THE  TREATY  SAVED  259 

"  He  asked  me  what  I  objected  to,  —  if  it  were  not  true 
that  we  relinquished  the  claims. 

"I  answered  that  my  statement  to  the  Arbitrators 
showed  exactly  what  we  had  done,  and  that  I  had  not 
used  the  word  '  relinquished/  and  did  not  intend  to  have 
it  put  in  my  mouth ;  neither  had  I  said  that  we  had  done 
anything  at  the  suggestion  of  the  Tribunal. 

"He  said,  I  understand  you  object  to  the  statement 
that  the  relinquishment  is  made  at  the  suggestion  of  the 
Arbitrators. 

"  I  replied,  I  object  to  the  statement  as  a  whole,  and  I 
object  to  each  of  its  parts.  What  is  your  objection?  he 
asked.  I  have  several,  I  replied,  some  of  which  I  have 
endeavored  to  explain,  j  One,  however,  which  I  have  not 
stated  is  sufficient  and  all-controlling.  I  have  never  had 
instructions  authorizing  me  to  make  any  such  statement 
as  your  Government  is  putting  into  my  mouth.  I  shall 
not  ask  for  such  instructions,  and  they  would  be  refused, 
if  I  did  ask.  If  you  are  without  authority  to  withdraw 
the  objectionable  words,  you  will  exercise  your  own 
judgment  about  telegraphing  your  Government  for  such. 
I  have  warned  you  in  advance  of  the  course  which  I 
shall  have  to  take. 

"  He  asked  me  to  wait  a  few  minutes  while  he  consult- 
ed with  Sir  Roundell  Palmer,  and  requested  me  before 
he  left  to  indicate  what  changes  I  would  desire.  I  told 
him  that  I  would  be  satisfied  if  he  would  take  out 
the  objectionable  words,  and  substitute  for  them  the 
word  statement;  that  I  had  no  objection  to  the  Arbi- 
trators making  the  proposed  declaration  upon  my  state- 
ment. 

"He  left  and  in  about  ten  minutes  returned,  saying 


260  THE  GENEVA  TRIBUNAL 

that  Sir  Roundell  authorized  him  to  assent  to  the  change. 
It  was  accordingly  made."  * 

One  sees  quickly  enough  what  importance  at- 
tached to  this  timely  and  firm  intervention  by  the 
American  Agent.  Had  the  words  remained  as  Lord 
Tenterden  had  at  first  proposed,  and  had  no  objec- 
tion appeared  of  record  from  the  United  States,  the 
British  Government  would  have  been  able  to  say 
that  their  contention  was  upheld  by  the  confession 
of  the  Government  of  the  United  States,  namely, 
that  they  had  never  agreed  to  submit  the  indirect 
claims  to  the  determination  of  the  Tribunal,  and  that 
their  opponents  had  relinquished  those  claims  at  the 
instance  of  the  Arbitrators.  So  far  from  this  being 
the  truth,  the  Government  of  the  United  States, 
as  a  matter  of  fact,  maintained  that  the  record 
states  that,  the  Tribunal  having  declared  that  they 
had  reached  the  conclusion  that  the  claims  hi  ques- 
tion were  not  a  good  foundation  for  damages,  they 
(the  Government  of  the  United  States)  would  not 
further  insist  upon  them.  That  is  to  say,  practically, 
the  Tribunal  has  given  its  opinion  in  advance,  and 
there  is  no  longer  any  use  in  our  insisting  upon  a 
money  award  for  these  claims. 

The  statement  made  by  Lord  Tenterden,  on  the 
27th,  is  as  follows:  — 

"The  undersigned,  Agent  of  Her  Britannic  Majesty, is 
authorized  by  Her  Majesty's  Government  to  state  that 

1  MS.  Archives,  Department  of  State. 


THE  TREATY  SAVED  261 

Her  Majesty's  Government  find  in  the  communication  * 
on  the  part  of  the  Arbitrators,  recorded  in  the  Protocol  of 
their  proceedings  of  the  19th  instant,  nothing  to  which 
they  cannot  assent,  consistently  with  the  view  of  the  in- 
terpretation and  effect  of  the  Treaty  of  Washington 
hitherto  maintained  by  them;  and  being  informed  of  the 
statement  made  on  the  25th  instant  by  the  Agent  of  the 
United  States,  that  the  several  claims  particularly  men- 
tioned in  that  statement  will  not  be  further  insisted  upon 
before  the  Tribunal  by  the  United  States,  and  may  be 
excluded  from  all  consideration  in  any  award  that  may 
be  made;  and  assuming  that  the  Arbitrators  will,  upon 
such  statement,  think  fit  now  to  declare  that  the  said 
several  claims  are,  and  from  henceforth  will  be,  wholly 
excluded  from  their  consideration,  and  will  embody  such 
declaration  in  their  Protocol  of  this  day's  proceedings; 
they  have  instructed  the  undersigned,  upon  this  being 
done,  to  request  leave  to  withdraw  the  application  made 
by  him  to  the  Tribunal  on  the  15th  instant  for  such  an 
adjournment  as  might  enable  a  supplementary  conven- 
tion to  be  concluded  and  ratified  between  the  high  con- 
tracting parties:  and  to  request  leave  to  deliver  the 
printed  Argument  now  in  the  hands  of  the  undersigned, 
which  has  been  prepared  on  the  part  of  Her  Britannic 
Majesty's  Government  under  the  fifth  article  of  the 
Treaty  with  reference  to  the  other  claims,  to  the  con- 
sideration of  which  by  the  Tribunal  no  exception  has  been 
taken  on  the  part  of  Her  Majesty's  Government."  2 

1  "Communication."  Note  that  the  United  States  term  it  "de- 
claration." After  this  had  all  been  settled  some  one  in  referring  to  it 
spoke  to  Count  Sclopis  of  the  judgment  of  the  Tribunal  on  the  in- 
direct claims.   The  President  quickly  replied:  "  Pas  jugement,  pas 
jugement  —  declaration." 

2  Gen.  Arb.,  vol.  iv,  pp.  21-22. 


262  THE  GENEVA  TRIBUNAL 

There  are  a  good  many  words  here;  enough  to  re- 
mind an  old  lawyer  of  some  of  those  stretches  on  the 
pages  of  "  Chitty's  Pleadings."  Had  the  statement 
been  of  the  present  day,  the  comfortable  reform  in 
England  with  respect  to  prolixity  of  pleadings  very 
likely  would  have  been  here  reflected.  As  if  to 
clinch  matters,  Count  Sclopis,  in  behalf  of  all  the 
Arbitrators,  then  formally  declared  that  the  several 
claims  for  indirect  losses  "are  and  from  henceforth 
shall  be  wholly  excluded,  etc."  Thus  the  indirect 
claims,  after  having  caused  almost  no  end  of  trouble 
in  the  two  families,  were  buried  decently,  and  for- 
ever, hi  the  international  cemetery. 

Lord  Tenterden,  as  soon  as  he  perceived  that  all 
danger  was  over,  filed  the  British  Argument,  and 
Count  Sclopis,  removing  the  seal  of  silence  from 
what  had  been  done,  proceeded  to  read  an  interest- 
ing and  appropriate  address. 

"  It  has  been  said  that  the  triumph  of  an  useful  ideals 
never  anything  but  a  question  of  time.  Let  us  congratu- 
late ourselves,  gentlemen,  that  we  assist  at  the  realization 
of  a  design  which  must  be  productive  of  the  happiest 
results.  Let  us  hope  that  it  will  realize  in  the  future  all 
that  it  promises  to-day.  ..." 

The  following  is  a  copy  of  a  telegram  to  Mr.  Fish 
that  is  historic :  — 

GENEVA,  June  27,  1872. 
British  Argument  filed.  Arbitration  goes  on. 

DAVIS.1 

1  Gen.  Arb.,  vol.  ii,  p.  580.  Of  this  laconic  despatch  Charles  Hale, 
then  Assistant  Secretary  of  State,  wrote:  "  It  reminded  me  of  General 


THE  TREATY  SAVED  263 

The  President  and  the  Secretary  of  State,  so  it 
happened,  were  at  Boston,  that  afternoon,  in  at- 
tendance upon  the  Peace  Jubilee  —  a  great  musical 
demonstration  of  praise  and  thanksgiving  for  the 
restoration  of  the  Union.  It  is  related  that  when  Mr. 
Fish  had  glanced  at  the  telegram,  he  handed  it  to 
General  Grant,  who  for  a  moment  stood  silent  —  the 
tears  moistening  his  eyes — such  was  Nature's  relief 
after  days  of  intense  anxiety.  To  Mr.  Fish  the  news 
came  in  a  shape  to  make  him  exceedingly  happy.  He 
saw  that  his  prudent  and  firm  statesmanship  was  to 
carry  through  to  success  a  work  for  his  country,  and 
for  the  peace  of  the  world,  that  meant  the  best  kind 
of  a  personal  triumph.  The  Treaty  of  Washington 
had  been  preserved  intact  and  the  principle  of  Ar- 
bitration between  nations  now  seemed  destined  to 
bring  to  mankind  its  blessings  for  the  years  to  come. 

"I  doubt  whether  Americans,  except  in  Government 
circles,  know  how  near  we  were  to  a  tremendous  conflict. 
[The  writer  (General  Badeau,  Consul-General  of  the 
United  States  in  England),  a  close  observer,  lived  in 
London  during  the  period  of  the  clamor  and  excite- 
ment of  which  we  have  been  taking  note.]  The  feeling 
in  England  was  very  high.  At  times  it  was  positively 
offensive  to  Americans,  especially  official  ones.  More 
than  once  at  clubs  and  dinners  I  had  to  resent  remarks 
that  no  good  'American  could  listen  to  in  silence,  and 
yet,  I,  too,  in  my  sphere  was  bound  to  be  courteous  and 
reserved."  l 

Putnam's  '  P.  S.  He  is  hanged.' "   MS.  Letter  to  Davis,  28  June, 
1872. 

1  Grant  in  Peace:  A  Personal  Memoir  (1887),  p.  228. 


264  THE  GENEVA  TRIBUNAL 

In  the  United  States,  the  news  that  the  "  indirect 
claims  "  trouble  had  been  got  over  was  received  and 
commented  upon  quite  as  a  matter  of  course.  Not 
so  in  England.  As  we  have  seen,  the  entire  popula- 
tion had  been  stirred  up.  National  prejudice  had 
been  at  work  hi  full  force;  and  the  news  from  Geneva 
excited  a  profound  attention,  hardly  less  so  than  if  it 
had  been  bulletins  posted  up  from  a  field  of  battle 
where  then*  country's  troops  were  engaged.  The  as- 
surance that  a  settlement  of  the  dispute  had  been 
effected,  and  that  danger  no  longer  threatened, 
brought  a  sense  of  grateful  relief  to  all  parts  of  the 
kingdom. 

"  It  was  one  of  the  great  moments  of  history.  The 
Cabinet  were  sitting  in  London  in  something  like 
permanent  session  on  that  fateful  day  "  (15th),  says 
Granville's  biographer.1  Forster  hi  his  diary  tells 
the  story  of  how  anxious  hours  were  passing  while 
news  from  Geneva  was  awaited.  When  a  telegram 
came  on  Sunday  that  Mr.  Adams  was  moving,  "we 
sent  a  short  helpful  telegram.  .  .  .  Granville  drove 
me  off  in  high  glee,  calling  at  the  Foreign  Office  to 
see  Harcourt.  After  all,  this  Treaty,  which  has  as 
many  lives  as  a  cat,  will  live." 2  "  You  appear  to  have 
saved  the  coach  hi  the  act  of  upsetting."  3  Glad- 
stone was  with  Granville  on  the  anxious  15th,  at  the 

1  Life  of  Earl  GranvUk,  vol.  ii,  p.  99. 

*  Reid:  Life  of  Forster,  vol.  ii,  p.  31. 

*  Granville  to  Tenterden,  30  July,  1872,  Life  of  Earl  Granvitte, 
vol.  ii,  p.  100. 


THE  TREATY  SAVED  265 

Foreign  Office  where  before  midnight  they  got  that 
day's  Protocol  from  Geneva.  "Thank  God,"  ex- 
claims the  Premier,  "that  up  to  a  certain  point  the 
indications  on  this  great  controversy  are  decidedly 
favourable."  l  Granville  writes  a  handsome  letter, 
cordially  thanking  Selborne  for  the  part  taken  by 
him  in  the  settlement  "of  this  vexed  question  in  a 
manner  which  is  so  satisfactory  in  every  respect."  2 
Lord  John  Russell,  who  had  seen  nothing  what- 
ever good  in  the  Treaty,  was  not  pleased.  His 
biographer,  writing  twelve  years  later,  says  of  the 
Arbitrators,  that  they  "actually.  .  .  decided  the 
very  point  which  Queen,  Cabinet,  Foreign  Office, 
and  the  great  majority  of  the  whole  nation  had 
decided  should  not  come  before  them  for  decision." 8 

1  Morley:  Life  of  Gladstone,  vol.  ii,  p.  411. 

1  Memorials,  vol.  i,  p.  239. 

*  Walpole:  Life  of  Lord  John  Russell,  vol.  ii,  p.  366. 


CHAPTER  VIII 

THE  TRIAL 

THE  "Argument,"  which  the  British  Agent  had  been 
holding  in  reserve  until  the  indirect  claims  should 
be  got  out  of  the  way,  turned  out  to  be,  when  filed  on 
27th  June,  a  document  not  very  formidable  as  to 
length. 

It  assumed  to  be  little  more  than  a  summary  of 
the  points  previously  advanced  in  the  British  Case 
and  Counter-Case.  It  presented  no  new  line  of  rea- 
soning. A  report  annexed  from  the  Board  of  Trade 
criticised  the  figures  of  the  amount  of  losses  offered 
by  the  United  States.  There  was  a  map  of  the  coast 
off  Liverpool;  and  sundry  statements  of  the  Counter- 
Case  of  the  United  States  were  briefly  controverted. 

It  looked  suspiciously  as  if  the  Counsel  for  Great 
Britain  had  been  taken  by  surprise.  For  months  the 
opinion  had  prevailed  throughout  England  that 
Arbitration  would  never  take  place.  The  Chief  Jus- 
tice had  made  up  his  mind  that  the  Treaty  was  dead, 
"  as  he  for  many  months  had  been  loudly  telling  all 
London  that  it  ought  to  be."  1  As  early  as  the  18th 
of  January  a  rumor,  to  be  treated  as  gossip,  had 
reached  the  ears  of  the  Agent  of  the  United  States, 
to  the  effect  that  Chief  Justice  Cockburn  had  recom- 

1  Morley's  Life  of  Gladstone,  vol.  li,  p.  412. 


THE  TRIAL  267 

mended  Mr.  Gladstone  to  withdraw  from  the  Arbi- 
tration if  any  claim  for  indirect  damages  should  be 
insisted  upon.1  Sir  Roundell  Palmer,  as  we  have 
seen,  was  disappointed  that  his  duties  at  Geneva 
had  not  been  abruptly  ended.  The  "Argument" 
bore  marks  of  having  been  hastily  prepared.  At  all 
events,  it  lacked  the  tone  of  a  final  and  concluding 
answer.  It  apparently  took  it  for  granted  that  the 
Tribunal  would  call  for  another  argument  to  be  of  a 
character  more  exhaustive.  The  document  termed 
itself  a  "  Summary/'  It  certainly  fell  far  short  of 
that  logically  reasoned]  reply  which  the  Counsel  for 
the  United  States  had  reason  to  expect. 

Nor  did  this  circumstance  excite  surprise.  When 
it  became  evident  that  the  proceedings  would  go  for- 
ward, the  British  Government  saw  itself  confronted 
with  the  necessity  of  seeking  an  opportunity  to  pre- 
pare and  submit  further  argument  of  a  more  elab- 
orate character,  than  that  which  they  were  just  of- 
fering. Sir  Roundell  Palmer,  confident  that  the 
step  would  amount  to  nothing  more  than  a  mere 
matter  between  Counsel,  addressed  a  letter  (19  June, 
1872)  to  Mr.  Evarts  suggesting  how  it  would  be  well 
to  proceed. 

".  .  .  As  your  Counter-Case  was  little  more  than 
formal,  our  '  Argument '  is  necessarily  little  more  than  a 
summary  of  our  previous  Case  and  Counter-Case;  while 
yours  is  (as  it  naturally  would  be)  an  elaborate  Argu- 

1  MS.  Letter  of  John  Jay  (Minister  to  Austria)  to  Davis,  Archives, 
Department  of  State. 


268          THE  GENEVA  TRIBUNAL 

ment,  like  the  opening  speech  of  the  plaintiff's  counsel, 
embodying,  among  other  things,  a  well-considered  reply 
to  our  Counter-Case. 

"  Under  these  circumstances,  it  is  probable  that  we  shall 
be  disposed  to  request  the  Arbitrators  to  give  us  the  op- 
portunity of  putting  in  an  answer  to  your  Argument,  with 
the  understanding  that  you  may  (in  that  case)  put  in 
a  rejoinder,  so  having  the  last  word;  and,  as  the  Arbi- 
trators could  not  understand  spoken  arguments  in  our 
language,  I  think  that  further  argument  had  better  be 
in  writing. 

"  For  that  purpose  I  shall  like  to  ask  for  myself  time  till 
the  end  of  the  first  week  in  August,  when  a  copy  of  my 
final  argument  should  be  sent  to  you,  and  also  (unless 
you  have  reason  to  think  that  this  should  be  done  later), 
to  each  Arbitrator.  Then,  if  you  should  desire  it,  I  shall 
suggest  that  you  might  have,  for  your  final  rejoinder,  till 
the  end  of  August,  and  that  the  Tribunal  should  assemble 
here  again,  for  their  final  business,  at  the  beginning  of 
September." 

In  plain  English  the  Counsel  for  Great  Britain  was 
saying  that  he  had  found  himself  not  satisfied  with 
the  Argument  that  he  had  filed.  He  proposed  that 
the  case  be  argued  all  over  again.  This  was  an 
adroit  move.  Of  course,  the  proposal  could  not  for 
a  moment  be  entertained.  After  consultation  the 
Agent  of  the  United  States  and  the  Counsel  agreed 
tjiat  Mr.  Evarts  should  decline  the  proposal  as  inad- 
missible under  the  terms  of  the  Treaty,  and  as  being 
inconvenient  and  unjust  to  the  American  Counsel. 


THE  TRIAL  269 

Mr.  Evarts  so  wrote;  and  then  he,  with  Mr.  Waite, 
left  Geneva  for  a  day  or  two  in  Paris. 

The  English  party,  after  the  declaration  of  the 
19th,  thought  it  well  to  take  a  brief  rest.  They  went 
to  Chamouni,  having  first  arranged  a  cipher  by 
which  they  could  be  brought  back.  The  weather  was 
sultry  and  the  "  interval  of  recreation  just  then 
was  welcome."  1 

Mr.  Davis,  hi  the  absence  of  Mr.  Evarts,  had  a 
further  conversation  with  General  Gushing  about 
Sir  Roundell  Palmer's  extraordinary  letter. 

"Mr.  Adams  had  previously  told  me  that  Sir  Alexan- 
der Cockburn  had  said  something  in  the  private  confer- 
ence of  the  Arbitrators  about  arguments  by  Sir  Roundell 
Palmer  and  Mr.  Evarts,  but  Mr.  Adams  spoke  of  it  as 
said  in  the  flourishing  way  in  which  the  Chief  Justice 
sometimes  likes  to  disport  himself,  and  did  not  appear 
to  attach  importance  to  it."  2 

The  upshot  of  the  affair  was  that,  at  the  request 
of  Mr.  Davis,  a  memorandum  was  drawn  up  by  Mr. 
Gushing  and  translated  into  French,  giving  the  rea- 
sons why  no  further  argument  of  the  nature  con- 
templated by  the  Counsel  for  Great  Britain  should  be 
permitted.  This  paper  was  put  into  the  hands  of  Mr. 
Adams.3 

At  the  conference  on  the  26th  of  June  Lord  Ten- 

1  Memorials,  vol.  I,  p.  238. 

2  MS.  Letter,  Davis  to  Fish,  Archives,  Department  of  State. 

8  Ibid.  "  The  Arbitrators  are  all  anxious  to  get  to  work,  and  will 
not  receive  with  much  patience  any  efforts  to  further  postpone- 
ment." 


270          THE  GENEVA  TRIBUNAL 

terden  undertook  to  have  the  Tribunal  act  favor- 
ably upon  a  statement  prepared  by  Sir  Roundell 
Palmer,  embodying  these  proposals  of  his  for  a  delay 
in  order  to  admit  of  further  argument.  The  Arbi- 
trators promptly  disposed  of  the  application.  They 
followed  the  suggestion  of  Mr.  Adams,  that  it  was 
not  for  Agents  or  Counsel  to  make  requests  of  this 
nature;  that  the  Arbitrators  themselves  could 
require  argument  by  Counsel,  if  they  should  desire 
further  elucidation  upon  any  point. 

A  second  attempt  Lto  reopen  the  Argument  was 
made  on  the  28th  —  this  tune  by  the  Arbitrator 
from  Great  Britain,  who  proposed  to  require  argu- 
ment on  a  series  of  eight  points,  which  he  named, "  for 
further  elucidation."  The  other  Arbitrators  were  of 
the  opinion  that  these  points  had  been  elucidated 
quite  as  much  as  was  needful;  and  Sir  Alexander 
stood  alone  in  voting  for  his  motion.1  It  was  a  good 
deal  to  ask  that  the  Arbitrators  should  suspend 
work  for  ten  weeks,  and  that  the  American  Arbi- 
trator, Agent,  and  Counsel  should  be  kept  that  much 
longer  abroad. 

"It  would  have  given  to  the  British  Counsel,"  says 
Mr.  Gushing,  "nearly  six  weeks  at  his  own  home  in  Lon- 
don, with  books,  assistants,  translators,  and  printing- 
offices  at  his  command,  —  in  a  word,  the  whole  force  of 
the  British  Government  at  his  back,  in  which  to  write 
and  print  his  Argument;  while  it  would  have  afforded 
to  the  American  Counsel  less  than  four  weeks  for  the  same 

1  MS.  Letter,  Davis  to  Fish,  Archives,  Department  of  State. 


THE  TRIAL  271 

task,  in  which  to  prepare  and  print  our  Argument,  in 
both  languages,  with  no  libraries  at  hand,  no  translators, 
no  printers,  thrown  wholly  on  our  personal  resources 
away  from  home  in  the  heart  of  Europe."  l 

Of  this  scheme  Mr.  Davis  quietly  observes:  — 

"  The  Arbitrators  evidently  mean  to  keep  the  control 
of  the  proceedings  in  their  own  hands  and  not  to  be  de- 
pendent upon  the  convenience  of  Sir  Roundell  Palmer." 2 

"What  the  Arbitrators  did,"  said  Sir  Roundell  Palmer, 
"was  to  refuse  to  allow  the  whole  Case  between  the  two 
Governments,  or  any  part  of  it,  except  certain  special 
questions,  limited  and  denned  by  themselves,  to  be  argued 
before  them  at  all.  I  had  not,  therefore,  the  opportunity 
(except  on  some  points,  in  a  sort  of  strait-waistcoat) 
of  saying,  in  reply  to  the  general  views  of  the  American 
Argument,  what  I  should  have  thought  proper,  and  in 
the  way  in  which  I  should  have  wished  to  do  so." 8 

As  soon  as  the  Chief  Justice  realized  that  the 
Arbitration  would  proceed,  he  set  to  work  with  char- 
acteristic energy  and  persistence.  He  allowed  him- 
self no  relaxation  from  labor.  His  private  secretary 
found  the  position  no  sinecure.  Sir  Thomas  Sander- 
son, writing  to  me,  under  date  26  February,  1907, 
says  of  the  English  party:  — 

"We  ordinarily  all  dined  together,  and  were  a  very 
cheery  party,  though  I  think  every  one  of  us  was  ill  from 
the  heat  and  severe  work,  at  one  stage  or  other  of  these 

1  The  Treaty  of  Washington,  pp.  102-103. 

2  MS.  Letter,  Davis  to  Fish,  Archives,  Department  of  State. 

1  Memorials,  vol.  i,  p.  276,  Palmer  to  Lowe,  7  October,  1872. 


272          THE  GENEVA  TRIBUNAL 

proceedings.  I  was  particularly  struck  at  the  resolution, 
almost  amounting  to  heroism,  with  which  Sir  Roundell 
Palmer  continued  his  work,  while  suffering  severely  from 
an  attack  of  gout  in  both  knees. 

"  Sir  A.  Cockburn  was  excellent  company.  He  had  no 
time  to  study  the  voluminous  papers,  on  account  of  his 
work  as  Lord  Chief  Justice,  and  shut  himself  up  for  the 
purpose  immediately  after  his  arrival  at  Geneva,  rarely 
coming  out  of  his  room  except  for  meals,  or  for  a  little 
exercise.  I  do  not  think  he  gave  us  much  additional  work 
on  this  account,  though  he  would  occasionally  appeal 
to  have  all  the  papers  relating  to  some  particular  subject 
marked  for  him.  But  he  was  a  very  rapid  and  volumin- 
ous writer,  and  the  work  of  copying  out  his  various  pro- 
nouncements, having  them  translated  into  French,  and 
then  reproduced  in  sufficient  numbers  at  an  approaching 
sitting,  was  at  times  extremely  severe." 

The  Chief  Justice  carried  his  habit  of  exacting 
study  to  such  lengths  that  he  paid  no  attention  what- 
ever to  the  social  requirements  of  his  position.  He 
did  not  appear,  save  on  a  single  occasion  later  to  be 
mentioned,  at  any  of  the  numerous  dinners  or  other 
festivities,  where  the  Americans  met  and  frater- 
nized with  the  other  members  of  the  English  party. 
As  a  result  he  was  personally  but  slightly  known  to 
us  young  Americans,  though  we  should  greatly  have 
enjoyed  meeting  him  occasionally.  Cockburn,  we 
thought,  wore  an  absorbed  look,  as  if  there  were 
something  on  his  mind;  while  Sir  Roundell  exhib- 
ited serenity  —  had  much  the  appearance  of  a  bishop 


THE  TRIAL  273 

—  a  countenance  pure  and  benignant,  almost 
seraphic.  Tenterden,  who  was  not  at  all  of  a  striking 
appearance,  reminded  one  of  a  plain  man  of  busi- 
ness. Staempfli  was  never  seen  in  society.  On  the 
other  hand,  Count  Sclopis,  though  advanced  hi 
years,  seemed  heartily  to  enjoy  social  intercourse, 
and  was  in  no  wise  lacking  in  gallantry.  One  even- 
ing, after  a  dinner  given  at  the  Beau  Rivage  by 
Bancroft  Davis,  there  was  a  brilliant  ball.  No  one 
appeared  to  be  having  a  better  time  than  the  portly 
and  amiable  President  of  the  Tribunal;  for  though 
he  left  the  dancing  to  the  younger  people  he  took 
a  delight  in  looking  on.  "  Les  demoiselles  Ameri- 
caineSj  qu'elles  sont  belles!"  he  said  to  me,  his  face 
bright  with  the  spirit  of  the  occasion.  I  quite  agreed 
with  him.  I  ought  to  have  said,  "  What  fine  judges 
you  Italians  are  "  —  but  I  did  n't.  I  could  say  it 
now,  but  I 'esprit  d'escalier  is  ever  unhappily  late. 

The  finest-looking  man  of  them  all  in  evening 
dress  was  Mr.  Gushing.  He  was  punctilious  in  meet- 
ing every  social  duty,  and  at  a  dinner  no  man  could 
make  himself  more  agreeable.  His  old-fashioned 
courtesy  to  ladies  was  delightful  to  witness.  Though 
not  an  after-dinner  wit  par  excellence,  as  was  Mr. 
Evarts,  Mr.  Gushing  never  failed  to  respond  to  the 
demands  of  the  occasion.  When  the  Countess 
Sclopis  said:  "Mr.  Gushing,  you  speak  of  ' flirta- 
tion.'— Pray  what  does  that  mean?"  "Well, 
madame,  I  should  say  it  meant  at-tention,  without 
in-tention." 


274  THE  GENEVA  TRIBUNAL 

Mr.  Evarts  was  as  charming  at  the  table  as  it  is 
possible  to  conceive  that  a  cultivated,  quick-witted 
person  of  note  can  be.  He  was  at  home  in  the  art  of 
raillery.  He  enjoyed  the  fun  himself,  and  the  smile 
that  played  around  his  lips  before  letting  fall  a 
sparkling  rejoinder  only  heightened  the  company's 
enjoyment.  For  instance,  my  diary  of  Saturday,  27 
July,  reads:  — 

"Dine  at  the  American  Arbitrator's.  Mr.  Adams  said 
to  me  that  Seward  once  told  him  that  Thurlow  Weed 
was  an  extraordinary  man.  '  Why,  he  has  made  the  Gov- 
ernors of  New  York  on  both  sides  for  years.'  Mr.  Adams 
said  that,  as  for  himself,  he  held  political  managers  in 
contempt. 

"  Mr.  Evarts  is  delightfully  witty.  He  told  an  inim- 
itable story  of  Smith,  a  wealthy  man,  who  owned  prize 
cattle;  that  he  was  chased  out  of  a  field  by  a  bull.  '  The 
idea  of  a  man  as  rich  as  I  am  —  to  be  chased  by  a  bull/ 
Also,  that  one  of  his  daughters,  when  very  young,  said, 
of  a  donkey  that  he  had  sent  up  to  his  farm  (at  Windsor, 
Vermont),  and  which  she  for  the  first  time  had  heard 
bray,  '  I  think  he  is  homesick;  but  he  won't  be  so  home- 
sick when  father  comes.'  Mr.  Evarts  said  that  this  was 
a  compliment  to  the  effect  that  he  was  good  company. 
Evarts  speaks  of  the  'Alabama  patois.'" 

The  social  duties  and  pleasures  that  marked  our 
sojourn  at  Geneva  played  a  useful  part  in  the  ac- 
complishment of  the  purposes  for  which  we  were 
spending  our  time.  We  were  not  unmindful  of  the 
fact  that  the  United  States  aimed  not  only  to  settle 


THE  TRIAL  275 

the  Alabama  Claims  by  gaining  an  award,  with  the 
proceeds  of  which  to  make  a  pecuniary  reparation 
to  those  who  had  suffered  losses,  but  what  was  of 
greater  moment,  to  sow  the  seeds  of  a  new  and  last- 
ing friendship  with  England.  There  would  be  no 
better  place  in  which  to  begin  this  work  than 
Geneva.  The  amenities  of  personal  intercourse 
would  not  fail  to  exert  a  wholesome  influence;  and 
while  not  conscious  of  a  studied  purpose  to  that  end, 
every  one  of  us  felt  impelled  to  multiply  occasions 
for  meeting  personally  the  members  of  the  English 
party,  so  that  we  could  get  to  know  each  other  fairly 
well,  if  not  intimately.  It  came  about  in  a  natural 
way  that  we  began  to  look  upon  the  two  parties  as 
one  family —  trying  to  make  up  a  family  quarrel  and 
to  start  anew. 

Lady  Laura  Palmer  and  her  daughter  were 
greatly  liked  by  the  ladies  of  our  party.  Lady  Ten- 
terden  was  more  retired,  but  always  pleasing.  It  is 
grateful  to  quote  from  Lord  Selborne  what  he  has  to 
say  on  the  topic  of  his  wife  and  daughters:  — 

"They  were  assiduous  in  their  attentions  to  the  wives 
and  daughters  of  the  Arbitrators,  and  of  the  members 
of  the  American  party;  so  promoting  very  much  that 
spirit  of  friendliness  and  cordiality  which  our  Government 
had  at  heart.  There  was  nobody  else  to  do  this;  and  the 
return  of  hospitalities  also  fell  to  our  lot.  It  was  thought 
desirable  that  a  dinner  should  be  given  to  the  Arbitrators 
and  their  wives,  and  all  the  members  of  the  American 
party,  and  a  few  other  friends,  Swiss  and  English,  which 


276  THE  GENEVA  TRIBUNAL 

we  undertook  to  do;  the  Chief  Justice  being  one  of  our 
guests,  though  he  was  not  inclined  to  add  the  labours  of 
social  entertainments  to  those  of  the  Tribunal,  not  being 
in  good  humour  with  the  proceedings,  or  with  the  actors 
in  them,  except  the  British  party.  The  entertainment 
came  off  on  the  5th  of  August,  although  I  was  crippled 
with  gout  at  the  time,  and  it  was  very  successful.  My 
wife's  desire  to  be  on  the  most  agreeable  terms  possible 
with  those  into  whose  society  she  was  thus  thrown  was 
appreciated  on  their  part;  and  nothing  could  be  more 
amicable  than  our  private  intercourse  with  them  all."  l 

A  favorite  saying  is  accredited  to  Lord  Stowell 
that  "  a  dinner  lubricates  business."  If  our  seniors  in 
either  party  were  mindful  of  their  opportunities  in 
this  direction,  we  young  Secretaries  were  not  slow  to 
follow  their  lead.  We  invited  the  English  Secreta- 
ries, together  with  Mr.  Itajuba,  to  a  handsome  din- 
ner; and  they  returned  it  with  one  equally  enjoyable. 
We  daily  met  the  young  Englishmen  at  the  swim- 
ming-baths, and  elsewhere  than  at  the  conferences, 
so  that  before  long  all  became  well  acquainted. 
Among  the  few  places  of  entertainment  that  were 
visited,  I  recall  an  evening  at  the  "  Cirque  d'Ame- 
ricaine,"  where  I  chanced  to  sit  next  to  Christine 
Nillson  and  her  husband.  She  had  been,  I  think, 
only  recently  married,  —  perhaps  was  then  on  her 
bridal  tour.  She  looked  most  charming.  I  could  not 
fail  to  be  struck  with  the  frequency  and  heartiness 
with  which  Madame  applauded  a  clever  act  by  a 

1  Memorials,  vol.  i,  p.  244. 


THE  TRIAL  277 

performer.  I  wondered  if  she  did  not  possess  a  pro- 
fessional, and,  therefore,  a  keener,  sense  than  the 
rest  of  the  audience  of  how  much  a  generous  round 
of  applause  helps  along  the  performance,  and  delights 
the  actor  with  the  thought  that  his  efforts  are  appre- 
ciated. 

A  solid  friendship  sprang  up  between  Sir  Roundell 
Palmer  and  Mr.  Evarts.  As  the  latter  was  put  for- 
ward by  our  Counsel  as  spokesman  in  more  than  one 
Conference  with  the  Counsel  for  Great  Britain, 
the  two  had  been  brought  into  contact  after  a  man- 
ner which,  as  lawyers  are  well  aware,  is  likely  to  be- 
get respect  and  esteem.  Then  the  home  attractions 
that  Mrs.  Evarts  and  her  daughters  offered  to  the 
visitor  were  not  lost  upon  Sir  Roundell  and  his 
family.  In  his  book  Lord  Selborne  speaks  of  his 
new-made  friend  in  terms  almost  of  affection. 

"In  person,  spare,  in  countenance  refined  and  intel- 
lectual, in  conversation  sincere  and  candid,  with  a  good 
deal  of  dry  humour,  he  stood  very  high  in  the  estimation 
of  us  all,  and  not  least  in  my  own.  I  could  have  trusted 
him  implicitly  in  anything  in  which  I  had  to  deal  with 
him  alone.  He  was  a  good  lawyer  and  a  skilful  advocate, 
and  had  also  the  qualities  of  a  statesman;  his  manners 
were  simple,  and  in  his  domestic  relations  he  was  very 
happy.  Altogether  he  was  a  man  of  whom  any  country 
might  be  proud."  * 

When  the  newly  made  Lord  Chancellor  (who  was 
a  stanch  Churchman)  opened  his  new  house  at 

1  Memorials,  vol.  i,  p.  247. 


278        THE  GENEVA  TRIBUNAL 

Blackmoor  with  a  service  of  benediction,  Mr.  and 
Mrs.  Evarts  were  present  as  guests,  on  their  way 
home.  They  left  there  10  October,  after  paying  a 
visit ;  and  Mr.  Evarts  wrote  to  Lord  Selborne  from 
Liverpool  as  follows:  - 

"I  think  that  we  may  feel  that  our  personal  relations 
to  each  other  have  not  been  without  benefit  to  the  great- 
est interests  of  these  two  powerful  nations;  and  I  shall 
cherish  the  hope  that  in  the  future,  we  may  have  the 
power,  as  I  am  sure  we  shall  feel  the  wish,  to  advance 
and  confirm  the  good  dispositions  of  our  respective  com- 
munities to  a  complete  and  perpetual  unity,  and  to  dis- 
courage and  reduce  all  contrary  tendencies.  I  shall  al- 
ways remember  that  I  was  in  England  when  you  were 
made  Lord  Chancellor,  and  in  your  house  when  your 
first  fire  was  lighted  in  your  great  hall-chimney;  and  shall 
never  feel  that  your  public  service,  or  domestic  prosper- 
ity, are  wholly  foreign  or  distant  to  me."  1 

While  these  agreeable  personal  relations  were 
forming  there  were  no  signs  that  the  feeling  of 
cordial  dislike  to  Americans  on  the  part  of  a  large 
number  of  influential  Englishmen  had  in  any  degree 
lessened.  Nor  could  it  be  expected  when  such  a 
journal  as  the  Saturday  Review,  representing  culture 
and  scholarship,  was  denouncing  "  the  scurrility  of 
the  American  Case."  An  incident  that  occurred  at 
Geneva  in  the  latter  part  of  June,  shortly  before  it 
had  been  made  public  that  the  "  indirect  claims  " 
trouble  was  at  an  end,  illustrates  how  unreasonable 

1  Memorials,  vol.  i,  p.  285. 


THE  TRIAL  279 

and  how  intense  was  this  feeling.  General  Sherman, 
accompanied  by  his  son  Tom,  reached  Geneva  in 
June  for  a  stay  of  a  day  or  so.  Mr.  Davis  presented 
him  to  the  President  of  the  Tribunal,  who  intro- 
duced the  General  to  the  other  Arbitrators.  Of 
course  everybody  was  charmed  with  the  simple 
manners  of  the  great  soldier.  The  General  stayed  at 
the  Beau  Rivage.  The  proprietor  of  the  hotel  hon- 
ored the  occasion  by  hanging  out  a  very  handsome 
American  flag  from  one  of  the  windows  of  the  rooms 
occupied  by  his  distinguished  guest.  Upon  the 
afternoon  of  the  day  that  the  General  had  taken  his 
departure,  an  English  tourist  applied  at  the  Beau 
Rivage  for  quarters.  The  rooms  just  vacated  were 
assigned  to  him,  as  specially  commodious  and  attrac- 
tive. A  few  minutes  later  the  traveller  bounced  into 
the  lower  room  of  the  hotel,  loudly  exclaiming  that 
he  had  been  insulted ;  he  would  not  stay  where  such 
treatment  was  accorded  him;  such  an  indignity  as  to 
put  him  into  a  room  displaying  the  American  flag. 
Now  that  the  reader  has  learned  that  the  daily  in- 
tercourse of  the  parties  did  not  lack  for  an  exhibition 
of  mutual  personal  esteem,  and  even  for  the  growth 
in  one  or  two  f  instances  of  a  genuine  friendship, 
I  feel  confident  that  I  shall  not  be  misunderstood  if 
I  venture  to  allude  to  the  displayof  what,  for  lack  of 
a  better  term,  I  may  call  the  tone  and  temper  of  the 
"  official "  attitude  of  the  Englishmen  toward  us 
of  the  "  States."  It  was  too  conspicuous  to  escape 
notice.  There  was  an  air  of  superiority  assumed  by 


280  THE  GENEVA  TRIBUNAL 

the  Englishmen,  not  only  as  respects  Americans  but 
toward  the  Italian,  Swiss,  and  Brazilian  representa- 
tives. Not  enough  of  an  air,  I  should  say,  to  offend; 
but  nevertheless  a  species  of  assumption  that  did 
show  itself  time  and  time  again.  The  maxim  of  the 
common  law  that  the  King  can  do  no  wrong  seemed 
to  be  a  truth  which  had  passed  over  into  the  proposi- 
tion that  the  conduct  of  the  English  Government 
must  as  a  matter  of  course  be  regarded  by  outsiders 
as  immaculate.  It  was  the  height  of  temerity  for  a 
foreigner  to  question  the  action,  much  less  the  mot- 
ive, of  an  English  official.  This,  because  the  English 
way  is  the  best  possible  way.  A  citizen  of  another 
country  can  only  betray  his  ignorance  when  he  thinks 
otherwise.  This  complacent  article  of  faith  lent  to 
the  Englishman  himself  an  atmosphere  of  perfect 
content  with  what  England  had  done,  or  had  omitted 
to  do.  Firm  in  this  belief,  he  found  himself  unable  to 
conceal  a  pitying  contempt  for  less  enlightened  per- 
sons who  did  not  share  the  belief  with  him. 

The  underlying  plea  in  behalf  of  England,  in  Case, 
Counter-Case,  and  Argument,  was  not  that  she  had 
not  been  in  fault,  but  that  in  the  nature  of  things  she 
could  not  have  been  so.  This  overwhelming  confid- 
ence in  their  own  rectitude,  and  absolute  certainty 
of  their  own  advance  —  in  everything  that  makes  a 
nation  great  —  over  every  other  power  of  the  globe, 
found  expression  in  the  contest  waged  at  Geneva  in 
much  that  was  said  by  the  Englishmen,  and  in  their 
manner  of  saying  it. 


THE  TRIAL  281 

In  opposing  from  the  beginning  the  principle  of 
England's  submitting  the  Alabama  claims  to  arbi- 
tration, Lord  John  Russell  showed  himself  to  be  a 
consistent  exponent  of  this  phase  of  the  British  na- 
tional character.  The  Lord  Chief  Justice,  though 
acting  as  an  Arbitrator,  could  not  rid  himself  of  a 
disposition  to  extol  his  own  country  and  to  disparage 
the  men  of  other  nationalities.  He  writes  to  Gran- 
ville:  — 

"Things  have  gone  badly  with  us  here.  I  saw  from  our 
first  sitting  in  July  that  they  would.  We  could  not  have 
had  a  worse  man  than  Staempfli  —  or  next  to  him  than 
the  President.  The  first  a  furious  Republican,  hating 
monarchical  government,  and  ministries  in  which  men 
of  rank  take  part,  ignorant  as  a  horse,  and  obstinate  as 
a  mule.  The  second  vapid,  and  all  anxiety  to  give  a  de- 
cision which  shall  produce  an  effect  in  the  world,  and  to 
make  speeches  about  'civilization/  'humanity/  etc.,  etc., 
in  short  un  vrai  phrasier.  Baron  Itajuba  is  of  a  far  better 
stamp,  but  not  sufficiently  informed  and  very  indolent; 
and  apt  by  reason  of  the  latter  defect  to  catch  hold  of 
some  salient  point  without  going  to  the  bottom  of  things, 
with  the  further  defect  of  clinging  to  an  opinion  once 
formed  with  extreme  tenacity."  l 

In  like  tone,  though  with  a  larger  measure  of  self- 
restraint,  Lord  Tenterden  complains:  "As  a  per- 
sonal question,  we  have  found  the  neutral  arbi- 
trators to  be  very  commonplace  people."  Tenterden 

1  Cockburn  to  Granville,  25  August,  1872 ;  Fitzmaurice :  Life 
of  Earl  Granvilk,  vol.  ii,  p.  101. 


282  THE  GENEVA  TRIBUNAL 

rises  above  this  prejudice  when  in  the  same  letter 
he  says :  — 

"It  may  prove  to  have  been  a  good  thing  for  both 
countries  and  for  the  world  in  general  to  have  had  re- 
course to  a  tribunal,  the  members  of  which  derived  their 
views  from  a  source  so  widely  differing  from  the  one 
which  we  have  been  accustomed  to  revere  as  the  only 
fountain  of  knowledge."  l 

That  Sir  Roundell  Palmer  was  not  free  from  oc- 
casionally exhibiting  the  presence  of  this  feeling  is 
a  fact  that  I  find  to  be  impressed  on  my  memory. 
Proof  of  its  influence  crops  out  in  the  chapters  of  the 
"  Memorials  "  that  deal  with  the  Treaty  of  Wash- 
ington. He  says  of  the  Lord  Chief  Justice,  as  if  the 
foundation  for  the  consciousness  were  not  open  to 
the  slightest  doubt,  that  he  was  "  conscious  of  intel- 
lectual superiority"  to  his  colleagues;  "and  at  no 
pains  to  conceal  what  he  felt."  2  "  Sir  Alexander 
Cockburn  is  hi  fact  the  only  one  of  the  Arbitrators 
who  can  be  considered  as  bringing  to  his  task  the 
fully  developed  experience  of  a  judicial  as  well  as 
juridical  mind."  He  cites  Lord  Westbury,  who  "in 
his  letter  of  7th  January,  1872,  to  Lord  Granville 
had  truly  observed,  that  a  tribunal  so  constituted 
was  '  little  likely  to  observe  the  well-known  rules  of 
arbitration  or  course  of  judicial  proceedings.'" 

While  the  air  of  the  assumption  referred  to  cannot 

1  Tenterden  to  Granville,  8  September,  1872 ;  Fitzmaurice :  Life 
of  Earl  Granville,  p.  105. 

2  Memorials,  vol.  i,  p.  247. 


THE  TRIAL  283 

be  said  to  have  been  that  of  superciliousness,  it 
closely  approached  it.  There  was  a  calm  taking  for 
granted  that,  excellent  and  admirable  as  the  indi- 
vidual American  might  be,  it  was  quite  impossible 
that  he  should  occupy  a  social  plane  equal  to  that  of 
the  favored  classes  of  England.  Not  that  there  was 
open  manifestation  of  this  article  of  faith  on  the 
part  of  our  British  friends  to  an  extent  that  can  be 
said  in  the  least  to  have  passed  the  limits  of  good 
breeding.  Far  from  it.  But  it  appeared  to  be  a  con- 
viction which  regulated  their  behavior,  and  its  influ- 
ence constituted  a  part  of  the  unwritten  record  of 
what  was  going  on  in  Geneva.  The  Americans,  as  I 
now  recall  it,  paid  no  attention  whatever  to  its  exist- 
ence, regarding  it  as  an  amiable  national  weakness. 
The  topic  is  a  delicate  one.  I  may  have  failed  to 
convey  a  distinct  idea  of  what  I  have  in  mind.  But 
there  is  no  doubt  that  an  atmosphere  of  some  such 
feeling  as  that  which  I  have  attempted  to  describe 
existed  at  Geneva.  Perhaps,  on  the  other  hand,  we 
from  the  "  States  "  were  as  a  body  open  to  comment 
for  something  in  our  bearing  which  struck  our  op- 
ponents as  a  national  characteristic  that  might  well 
have  been  improved  upon.  To  come  to  individual 
instances,  I  dare  say  that  the  American  Arbitrator 
had  never  suspected  that  Tenterden  would  write 
home:  "Adams  always  tries  to  pump  me";  and  it 
may  have  surprised  the  American  Agent  when, 
years  afterwards,  he  could  read:  "  Davis  is  very  mo- 
rose and  discontented  in  appearance.  I  think  he  is 


284  THE  GENEVA  TRIBUNAL 

disgusted  with  the  rejection  of  the  pursuit  and  cap- 
ture claims."  l 

But  to  return  to  our  narrative.  The  Arbitrators 
welcomed  the  prospect  of  getting  promptly  to  work, 
though  circumstances  had  rendered  it  advisable  to 
take  a  short  recess;  so  they  adjourned  until  Monday, 
the  15th  of  July.  Mr.  Waite  improved  the  oppor- 
tunity to  set  out  upon  a  tour  through  Switzerland, 
with  his  family  and  a  few  friends,  and  he  was  kind 
enough  to  include  me  among  the  number.  Each 
day  was  delightfully  passed.  I  had  already  seen 
much  of  Mr.  Waite  at  Paris,  where  he  had  endeared 
himself  to  the  younger  members  of  our  party.  A 
better  chance  now  offered  to  know  the  real  man. 
Frank,  pure-minded,  ever  consulting  the  comfort 
of  others,  he  was  the  most  lovable  of  companions. 
In  those  few,  happy  vacation  days,  I  learned  — 
as  so  many  of  his  countrymen  were  destined  before 
long  to  learn  —  how  elevated  and  how  generous 
were  his  qualities  of  mind  and  heart. 

Upon  reassembling  on  the  15th  of  July  the  Pre- 
sident of  the  Tribunal  announced  that  it  was  neces- 
sary for  the  Tribunal  to  determine  the  method  and 
order  of  its  procedure.  Mr.  Staempfli  had  outlined 
a  plan  which  he  now  submitted.  It  provided  that 
each  vessel  should  be  taken  up,  the  facts  with  regard 
to  her  stated,  and  the  rules  of  the  Treaty  applied  to 
the  facts.  This  simple  and  natural  method  appeared 

1  Tenterden  to  Granville,  8  Sept.,  1872 ;  Fitzmaurice :  Life  of 
Granvttle,  vol.  ii,  p.  106. 


THE  TRIAL  285 

to  meet  the  favor  of  all  the  Arbitrators,  save  only 
Sir  Alexander  Cockburn.  A  discussion  took  place  in 
the  presence  of  Agents  and  Counsel.  Sir  Alexander 
urged  his  own  plan  with  much  warmth.  He  con- 
tended that  the  rational,  logical,  and  most  conven- 
ient course  was  to  determine  hi  advance  the  abstract 
principles  of  law;  in  fact,  that  it  was  necessary  so  to 
do.  He  again  brought  forward  the  statement  that 
the  points  involved  had  not  been  sufficiently  argued, 
and  that  the  Arbitrators  needed  further  light  from 
Counsel.  His  colleagues  seemed  to  be  of  opinion  that 
they  were  ready  to  go  ahead  and  take  up  the  case  of 
a  vessel.  They  said  that  if  they  should  find  that 
their  minds  needed  enlightenment  upon  the  law,  it 
would  then  be  time  enough  to  call  upon  Counsel.1 

The  Tribunal  adjourned  till  the  next  day,  leaving 
it  undecided  in  what  manner  they  would  proceed, 
but  plainly  signifying  that  when  the  question  should 
come  to  a  vote  the  plan  of  the  Swiss  Arbitrator 
would  be  adopted.  On  the  16th  Sir  Alexander  sub- 
mitted a  paper  of  considerable  length  to  the  consid- 
eration of  the  Tribunal,  setting  out  the  views  just 
mentioned.  Lord  Selborne  (who  probably  had  some- 
thing to  do  with  drawing  up  the  programme)  ob- 
serves in  plaintive  terms :  — 

"  In  vain  did  Sir  Alexander  Cockburn  submit  his  pro 

1  "  It  is  impossible  to  convey  to  you  the  interest  of  the  scene, 
especially  when  Mr.  Staempfli  made  the  declaration  that  his  own 
mind  was  nearly  made  up  on  the  questions  at  issue."  MS.  Letter, 
Davis  to  Fish,  15  July,  1872,  Archives,  Department  of  State. 


286  THE  GENEVA  TRIBUNAL 

posed  plan.  The  other  Arbitrators  determined  to  follow 
a  proposition  of  M.  Staempfli  that  they  should  at  once 
proceed  to  consider  one  after  another  the  cases  of  the 
several  ships  inculpated."  * 

It  is  perhaps  worth  while  to  recite  a  part  of  the 
closing  paragraph  of  Sir  Alexander's  paper,  that  we 
may  observe  with  how  much  delicacy  the  thought 
that  the  Tribunal  was  not  competent  to  proceed  to 
decide  the  case  upon  the  documents  already  in  their 
hands  is  kept  in  the  background.  After  stating  sev- 
eral questions,  ending  with  the  enquiry  "  whether 
a  Government  acting  in  good  faith,  and  honestly 
intending  to  fulfil  the  obligations  of  neutrality,  is  to 
be  held  liable  by  reason  of  mistake,  error  in  judg- 
ment, accidental  delay,  or  even  negligence  of  a  sub- 
ordinate officer, "  Sir  Alexander  gravely  remarks:  — 

"Looking  to  the  difficulty  of  these  questions,  and  the 
conflict  of  opinion  which  has  arisen  among  distinguished 
jurists  on  the  present  contest,  as  well  as  to  their  vast 
importance  in  the  decision  of  the  Tribunal  on  the  matters 
in  dispute,  it  is  the  duty,  as  it  must  be  presumed  to  be 
the  wish,  of  the  Arbitrators,  in  the  interest  of  justice,  to 
obtain  all  the  assistance  in  their  power  to  enable  them 
to  arrive  at  a  just  and  correct  conclusion."  2 

No  one  felt  disposed  to  dispute  the  truth  of  this 
proposition.  There  was  not  the  slightest  danger  that 
the  Arbitrators  would  forbear  to  ask  assistance, 
whenever  they  should  find  that  they  really  needed 

1  Memorials,  vol.  i,  p.  257.  *  Gen.  Arb.,  vol.  iv,  p.  28. 


THE  TRIAL  287 

it.  The  Treaty  had  provided  for  an  Argument  to  be 
delivered  to  each  Arbitrator,  and  if  the  Arbitrators 
(that  is,  a  majority  of  them)  should  desire  further 
elucidation  with  regard  to  any  particular  point,  they 
could  require  an  argument,  printed  or  oral.  This 
meant,  of  course,  not  a  reargument  of  all  the  law, 
but  a  fresh  discussion  of  one  or  more  points  to  be 
specified. 
Sir  Alexander's  paper  continues:  — 

"  That  they  ought,  therefore,  to  call  for  the  assist- 
ance of  the  eminent  Counsel  who  are  in  attendance  on 
the  Tribunal  to  assist  them  with  their  reasoning  and 
learning,  so  that  arguments  scattered  over  a  mass  of 
documents  may  be  presented  in  a  concentrated  and  ap- 
preciable form,  and  the  Tribunal  may  thus  have  the 
advantage  of  all  the  light  which  can  be  thrown  on  so  intri- 
cate and  difficult  a  matter,  and  that  its  proceedings  may 
hereafter  appear  to  the  world  to  have  been  characterized 
by  the  patience,  the  deliberation,  and  anxious  desire  for 
information  on  all  the  points  involved  in  its  decision, 
without  which  it  is  impossible  that  justice  can  be  duly 
or  satisfactorily  done."  l 

Mr.  Gushing  in  his  book  criticises  this  paper  with- 
out mercy.  After  pointing  out  that  "arguments" 
are  not,  and  cannot  be,  scattered  over  a  mass  of 
documents,"  he  says  that  "  the  proposition  betrays 
singular  confusion  of  mind  on  the  part  of  a  nisi  prius 
lawyer  and  judge."  The  move  he  accounts  for  upon 
the  theory  that  Sir  Alexander  had  neglected  to  read 

1  Gen.  Arb.,  vol.  iv,  p.  28. 


288  THE  GENEVA  TRIBUNAL 

the  Arguments.  "  Instead  of  doing  it,  he  had  got  be- 
wildered by  plunging  unpreparedly  into  the  '  mass  of 
documents'  filed  by  the  two  Governments."  l 

The  proposal  of  the  Arbitrator  from  Great  Britain 
was  discussed;  and  the  Tribunal  decided  to  take  up 
the  Florida  at  the  next  meeting,  according  to  the 
Staempfli  programme.  Each  Arbitrator  was  to  ex- 
press an  opinion  in  writing,  which  would  be  provi- 
sional only.  The  opinion  could  be  modified  before  a 
final  decision.  These  provisional  opinions,  though 
read  in  the  presence  of  Agents  and  Counsel,  were  to 
be  kept  secret.  The  plan  seems  to  have  been  wisely 
conceived.  It  did  not,  however,  please  the  British 
Arbitrator  or  the  British  Counsel.  Yet  there  is  no 
good  reason  for  believing  that  the  decision  went 
against  Great  Britain,  in  any  instance,  because  Sir 
Roundell  Palmer  was  deprived  of  a  chance  to  per- 
suade the  Tribunal  to  the  contrary.  True,  the 
method  followed  was  a  distinct  departure  from  the 
course  usually  pursued  in  an  English  or  American 
court,  but  the  Tribunal  was  not  bound  to  follow  the 
practice  of  such  a  court.2  It  shaped  its  procedure  to 
suit  itself,  with  a  view  of  doing  that  which  best  pro- 
mised to  lead  with  proper  celerity  to  a  just  and  fair 
conclusion. 

1  The  Treaty  of  Washington,  pp.  112-113. 

2  It  may  be  remarked  here  that  while  no  lawyer  elevated  to  the 
Bench  in  England,  or  in  the  United  States,  takes  his  seat  without 
first  having  been  sworn,  according  to  the  form  of  a  judicial  oath, 
for  the  faithful  performance  of  his  duties,  the  members  of  the 
Geneva  Tribunal  of  Arbitration  took  no  oath. 


THE  TRIAL  289 

On  the  17th  the  Arbitrators  took  up  the  case  of 
the  Florida.  Mr.  Staempfli  was  the  first  to  express  an 
opinion  which  found  Great  Britain  wanting  in  due 
diligence.  Sir  Alexander  Cockburn  acquitted  Great 
Britain,  in  an  opinion  read  on  the  17th  and  19th.1 

On  the  22d  Mr.  Adams  and  Baron  Itajuba  agreed 
in  their  opinions  with  the  result  reached  by  the 
Swiss  Arbitrator.  Count  Sclopis  followed,  and  an- 
nounced his  provisional  opinion  to  a  like  effect. 
When  Count  Sclopis  had  finished,  for  an  instant 
there  was  perfect  silence.  Every  one  seemed  to 
realize  that,  the  Florida  disposed  of,  the  Alabama 
must  inevitably  follow;  and  that  the  principles  laid 
down  would  probably  carry  the  Shenandoahj  and 
perhaps  the  Georgia  and  other  vessels.  The  silence 
was  broken  by  Sir  Alexander  Cockburn,  who  said:  — 

"At  the  end  of  his  eloquent  speech  the  President  has 
spoken  of  the  law  of  nations  as  the  basis  of  his  judgment. 

1  Of  the  conduct  of  Sir  Alexander  at  the  Conference  of  Wed- 
nesday, 17th  July,  the  American  Agent  was  moved  to  write  con- 
fidentially to  the  Secretary  of  State,  on  the  18th,  as  follows:  — 

"  In  this  rapid  sketch  of  what  took  place  at  the  Conference, 
yesterday,  I  cannot  hope  to  give  you  even  a  faint  idea  of  the  ex- 
cited, angry  manner  of  the  British  Ambassador.  He  flushed  in  the 
face,  and  the  tears  welled  in  his  eyes,  as  he  denounced  the  charges 
against  the  British  Government  as  false  and  unworthy  of  a  great 
nation.  This  was  not  in  the  manuscript  from  which  he  was  reading. 
When  he  abandoned  his  notes,  and  extemporized,  which  he  did  at 
length,  he  threw  himself  about,  and  pounded  his  desk,  until  he 
upset  the  stationery  of  Count  Sclopis,  who  was  sitting  eight  or  ten 
feet  from  him."  MS.  Letter,  Davis  to  Fish,  Archives,  Department 
of  State. 


290  THE  GENEVA  TRIBUNAL 

Baron  Itajuba,  on  the  other  hand,  has  spoken  of  the 
Three  Rules  as  the  foundation  for  his  opinion.  When  I 
prepared  my  opinion,  I  thought  that  we  were  to  occupy 
ourselves  exclusively  with  facts,  leaving  the  law  to  be 
discussed  hereafter.  From  the  beginning  I  have  opposed 
Mr.  Staempfli's  mode  of  proceeding,  and  I  have  strenu- 
ously endeavored  to  induce  the  Arbitrators  to  discuss  and 
settle  the  principles  of  law  before  determining  the  facts." 1 

The  Chief  Justice,  with  not  a  little  show  of  tem- 
per, continued  in  this  strain,  saying, "  I  appeal  to  your 
sense  of  justice,"  with  further  remarks  of  like  tenor. 

The  language  and  the  bearing  alike  of  Sir  Alex- 
ander upon  this  occasion  gave  offence  to  his  asso- 
ciates. He  talked,  it  seems,  like  a  person  with  a 
grievance.  He  said  that  the  course  pursued  of  refer- 
ring only  to  the  printed  documents  ought  not  to  sat- 
isfy the  Tribunal,  and  would  not  satisfy  the  public. 
Great  Britain,  he  warmly  insisted,  had  had  no  op- 
portunity to  reply  to  many  considerations  and  argu- 
ments not  appearing  in  any  other  document  than 
the  Argument  of  the  United  States.  Although  the 
Case  had  been  for  more  than  six  months  in  their 
hands,  and  the  Counter-Case  for  three  months,  the 
Lord  Chief  Justice  had  the  temerity  to  argue  that 
his  fellow  Arbitrators  were  not  able  to  reach  a  cor- 
rect judgment  unless  Counsel  should  be  further 
heard.  "There  are  men  here  not  educated  in  the 
law,  who  are  now  examining  questions  about  the 

1  MS.  Letter,  Davis  to  Fish,  22  July,  1872,  Archives,  Department 
of  State. 


THE  TRIAL  291 

great  laws  common  to  nations,  for  the  first  time; 
it  is  impossible  that  they  should  not  be  benefited 
by  the  help  of  Counsel."  This  extraordinary  declar- 
ation he  followed  up  by  demanding,  as  of  right 
under  the  Treaty,  the  aid  of  Counsel.  It  was  a 
threatening  situation. 

The  President  (Count  Sclopis)  was  profoundly 
moved.  He  rebuked  the  British  Arbitrator  in  digni- 
fied but  severe  terms.  Referring  to  his  (Sclopis)  hav- 
ing presided  for  twenty  years  over  a  court  of  justice, 
he  said  that  never  before  had  such  language  been 
used  to  him.  He  had  already  made  up  his  mind  upon 
the  question  of  "due  diligence,"  and  had  written  his 
opinion.  But  he  would  consult  the  Tribunal.1 

The  Lord  Chief  Justice  saw  instantly  that  he  had 
made  a  serious  mistake.  He  hastened  to  disclaim  an 
intention  of  giving  offence.  But  he  had  arrayed  the 
whole  Bench  against  him.  Each  Arbitrator  in  turn 
declared  that  he  did  not  care  to  hear  argument.  Mr. 
Adams  added  that  it  was  not  for  one  of  the  Arbi- 
trators "  to  give  us  a  lecture  in  this  matter."  They 
had  the  Case  well  in  hand,  and  wanted  no  further 
elucidation  —  and  yet  they  yielded,  and  were  will- 
ing to  hear  Sir  Roundell  Palmer  talk.  The  Agent  of 
the  United  States  later  contrived  to  let  the  Tribunal 
know  that  the  United  States  were  content  to  rest 
upon  the  printed  Arguments;  and  yet,  if  Great 
Britain  should  say  that  she  desired  an  opportunity 
for  her  own  benefit  to  argue  certain  specified  points, 

1  MS.  Letter,  Davis  to  Fish,  Archives,  Department  of  State. 


292          THE  GENEVA  TRIBUNAL 

there  would  be  no  objection.  The  importunity  of 
Sir  Alexander  Cockburn  carried  the  day.1 

At  the  next  conference  (25  July)  the  Tribunal,  on 
motion  of  Baron  d'ltajuba,  announced  that  it  would 
hear  argument  on  the  question  of  "  due  diligence 
generally  considered  ";  also,  upon  the  special  ques- 
tions of  (1)  the  effect  of  commissions  on  Confeder- 
ate ships  entering  British  ports;  (2)  supplies  of  coal 
in  British  ports  to  Confederate  ships. 

The  Brazilian  Arbitrator  had  felt  no  need  of  hav- 
ing his  mind  enlightened.  Nor  did  any  member  of 
the  Tribunal,  other  than  Sir  Alexander  Cockburn, 
deem  further  argument  desirable.  The  Tribunal, 

1  Davis  to  Fish,  22  July,  1872,  MS.  A  rchives,  Dept.  of  State.  ' ' '  What 
is  the  matter  with  your  Arbitrator?'  was  the  warning  note  which 
came  from  Geneva,  and  from  a  friendly  pen,  very  shortly  after  the 
sittings  had  commenced  for  actual  business.  '  He  acts  as  if  he  were 
possessed.  Last  week  he  insulted  the  rest  of  us,  one  at  a  time,  but 
to-day  he  insulted  us  all  in  a  bunch.  Does  he  yet  mean  to  break 
up  the  Treaty?'  '  The  effect  thus  far  is  very  damaging  to  our 
cause,'  Lord  Tenterden  plainly  told  Lord  Granville.  (Tenterden 
to  Granville,  1  August,  1872.)  Sir  Alexander  Cockburn,  in  a  word, 
considered  the  American  claims  excessive,  and  that  their  ad- 
vocacy had  been  unscrupulous.  He  looked  upon  the  conduct  of 
M.  Staempfli  as  unjudicial  and  bearing  marks  of  partiality  and  pre- 
judice. He  considered  most  of  his  colleagues  incompetent;  and  these 
feelings  he  was  also  entirely  unable  to  conceal."  (Life  of  Earl 
Granvilk,  vol.  ii,  p.  102.)  "I  am  not  surprised  at  the  violence  of  Sir 
Alexander  Cockburn.  I  was  prepared  to  expect  such  a  display  of  pig- 
headed prejudice  and  temper  from  the  conversation  I  had  with 
him  here,  last  winter.  How  much  he  must  be  helping  us,  uncon- 
sciously to  himself,  by  such  displays  of  anger  and  such  insolent 
flings  at  his  colleagues."  (MS.  Letter,  Schenck  to  Davis,  24  July, 
1872.) 


THE  TRIAL  293 

however,  concluded  that  it  was  better  to  listen  to 
what  Sir  Roundell  Palmer  might  have  to  say  than  to 
incur  the  risk,  after  judgment  had  been  pronounced, 
of  having  Great  Britain  complain  that  a  fair  hearing 
had  not  been  accorded  her. 

Four  days  after  the  announcement  of  a  willing- 
ness to  hear  further  argument,  Lord  Tenterden  laid 
a  printed  brief  before  the  Tribunal,  in  which  Sir 
Roundell  Palmer  had  elaborately  discussed  these 
questions.  It  is  a  fair  inference  that  this  supple- 
mental argument  comprises  what  the  ingenious 
Counsel  had  previously  been  trying  to  get  before 
the  Arbitrators.  The  variety  of  topics  which  Sir 
Roundell  manages  to  touch  upon  in  his  treatment  of 
the  subject  of  "  due  diligence  "  supports  this  theory. 
Pretty  much  the  entire  defence  is  brought  forward 
under  the  head  of  "  due  diligence  generally  consid- 
ered." "  Very  generally,  it  is  clear,"  observes  Mr. 
Gushing,  to  whom  the  duty  fell  of  replying  to  the 
British  "  Supplemental  Argument "  on  this  point.1 

We  may  profitably  look  a  little  into  the  ground- 
work of  this  last  strenuous  effort  on  the  part  of  Eng- 
land's leader  at  the  Bar,  so  as  to  conjecture,  if  we 
may,  what  possible  reasons  might  be  conceived  of  as 
being  likely  to  have  the  effect  upon  the  Tribunal  of 
acquitting  Great  Britain  of  default  in  her  duty 
toward  the  United  States. 

Briefly,  it  had  been  charged  against  England  that 
she  did  not  use  due  diligence  to  prevent  the  fitting- 

1  The  Treaty  of  Washington,  123. 


294  THE  GENEVA  TRIBUNAL 

out,  arming,  or  equipping  within  her  jurisdiction  of 
every  vessel  which  she  had  reasonable  ground  to  be- 
lieve was  intended  to  cruise  or  carry  on  war  against 
the  United  States. 

Also,  that  she  did  not  use  due  diligence  to  prevent 
the  departure  from  her  jurisdiction  of  every  vessel 
intended  to  cruise,  etc.,  such  vessel  having  been 
specially  adapted,  in  whole  or  in  part,  within  her 
jurisdiction,  to  warlike  use. 

That  she  permitted  the  Confederates  to  make  use 
of  her  ports  and  waters  as  a  base  of  naval  operations 
against  the  United  States;  or  for  the  renewal  or 
augmentation  of  military  supplies  or  arms,  or  the 
recruitment  of  men,  for  the  purpose  of  war  against 
the  United  States. 

Lastly,  that  England  did  not  exercise  due  dili- 
gence to  prevent  violation  of  her  obligations  and 
duties,  as  aforesaid,  against  the  United  States. 

Our  contention  was,  in  a  word,  that  the  British 
Government  could  have  prevented  (and  therefore 
should  have  prevented)  the  Confederate  cruisers 
from  getting  to  sea;  that  they  gave  hospitality  to 
these  cruisers;  and  in  one  instance  (the  Shenandoah 
at  Melbourne)  allowed  the  Confederate  crew  to  be 
augmented  by  enlistments  in  a  British  port.  We 
further  said  that  the  British  Foreign  Enlistment  Act 
was  punitive,  not  preventive;  and  that  even  the  law 
of  that  Act  was  not  enforced  as  it  ought  to  have 
been  enforced. 

Great  Britain  replied  that  she  had  exercised  due 


THE  TRIAL  295 

diligence;  that  her  legislation  was  sufficient  to  pro- 
tect the  rights  of  a  belligerent  as  against  another 
belligerent,  and  that  the  law  was  duly  adminis- 
tered. If  evidence  had  not  been  adduced  sufficient 
to  satisfy  the  officers  of  the  Government  that  the  ship 
complained  of  was  violating  the  law,  the  Government 
was  not  to  blame  for  failure  to  detain  her;  and 
lastly,  that,  on  the  facts,  England  was  not  respons- 
ible. 

The  main  defence  (as  we  have  heretofore  seen) 
was  that  a  due  execution  of  the  Foreign  Enlistment 
Act  measured  the  obligations  of  the  British  Govern- 
ment toward  the  United  States.  Even  in  the  case  of 
the  Alabama,  flagrant  as  were  the  undisputed  facts, 
Great  Britain  contended  that  the  charge,  when 
tested,  became  reduced  to  a  complaint  that  for  a 
few  days,  while  "  the  evidence  was  coming  in,  the 
British  Government  took  a  little  more  time  to  sat- 
isfy itself  that  there  was  ground  sufficient  to  warrant 
a  seizure  than  the  United  States  think  was  neces- 
sary." * 

The  Three  Rules  of  the  Treaty  and  the  meaning 
of  the  expression  "  due  diligence  "  were  discussed  in 
the  British  Argument.  Of  course  there  had  been 
ample  time  for  just  as  extensive  an  argument  upon 
this  particular  point  of  "  diligence  "  as  Counsel  could 
reasonably  have  desired.  The  enquiry  whether  the 
prospect  that  Arbitration  would  fail  had  the  effect 
to  slacken  the  interest  with  which  the  British  Gov- 

1  Gen.  Arb.,  vol.  iii,  p.  280. 


296  THE  GENEVA  TRIBUNAL 

eminent  prepared  their  Argument,  opens  a  field  of 
speculation  into  which  we  may  not  enter.  It  is  note- 
worthy that  while  the  American  Argument  extends 
to  two  hundred  pages,  the  British  Argument  occu- 
pies only  ninety-one.  But  taking  the  Case  and  the 
Counter-Case  into  the  computation,  it  will  appear 
that  the  total  number  of  pages  which  present  what 
the  United  States  chose  to  say  on  the  subject  is 
three  hundred  and  thirty-nine;  while  Great  Britain 
employed  four  hundred  and  thirteen.  Thus  we  see 
that,  before  asking  leave  to  file  a  supplementary 
argument,  Great  Britain  had  already  "had  her  day 
in  court"  in  a  larger  number  of  words  than  the 
United  States  had  found  it  necessary  to  use.1 

The  Counsel  for  Great  Britain  was  most  anxious 
to  be  heard  anew.  He  urged  as  reasons  why  he 
should  be  permitted  to  reargue  the  case,  that  the 
Counsel  for  the  United  States  had  advanced  new 
arguments  that  were  erroneous  and  calculated  to 
mislead  unless  Great  Britain  had  a  chance  to  cor- 
rect them ;  also,  that  many  important  views  taken  in 
the  Argument  of  the  United  States  could  not  have 
been  adequately  dealt  with  by  anticipation;  and, 
finally,  that  there  was  in  the  Argument  a  new  and 
copious  use  made  of  extracts  from  Phillimore,  and 
from  the  speeches  and  writings  of  British  statesmen, 
to  many  of  which  no  reference  had  before  been 
made.2  His  importunity,  as  has  already  been  ob- 
served, was  at  last  rewarded;  and  the  Tribunal  was 

1  Gen.  Arb.,  vol.  iii,  p.  379.  2  Ibid.,  p.  375. 


THE  TRIAL  297 

probably  not  surprised  to  find  that  Sir  RoundelPs 
supplemental  argument  upon  the  topic  of  "  due  dili- 
gence "  by  no  means  confined  itself  to  the  scope  indi- 
cated by  these  ingenious  "reasons."  It  took  up  the 
assigned  subject  in  a  general  way,  and  discussed  it 
very  much  in  the  same  strain  as  the  British  Argu- 
ment had  already  done. 

To  understand  the  Three  Rules,  says  the  Counsel 
for  Great  Britain,  it  is  important  to  see  how  the 
question  between  the  two  Governments  would  have 
stood  had  there  been  no  agreement  in  the  Treaty  as 
to  the  Rules.  Why  this  should  be  so  is  not  very 
apparent,  and  under  his  skilful  treatment  the  Three 
Rules,  before  Sir  Roundell  gets  through,  practically 
disappear.  The  earlier  Argument  had  maintained 
that  an  unarmed  ship  was  as  much  a  lawful  subject 
of  commerce  with  a  belligerent  as  any  other  muni- 
tion or  instrument  of  war.  A  ship  leaving  the  neutral 
country  unarmed,  it  was  contended,  is  guilty  of 
no  violation  of  neutral  territory.1  In  the  presence  of 
the  Three  Rules  it  would  appear  hardly  worth  while 
to  consider  what  on  this  point  was  the  doctrine  of 
international  law.2 

1  Gen.  Arb.,  vol.  iii,  p.  386. 

8  The  Arbitrators,  with  the  exception  of  Sir  Alexander  Cock- 
burn,  evidently  paid  no  attention  to  the  question  whether  the 
Three  Rules  did,  or  did  not,  merely  formulate  principles  of  inter- 
national law  in  existence  during  the  period  of  the  occurrence  of  the 
events  giving  rise  to  the  Alabama  Claims.  It  was  enough  that  the 
parties  had  agreed  that  these  Rules  should  govern  the  Tribunal, 
as  well  as  "such  principles  of  international  law,  not  inconsistent 
therewith,"  as  it  should  determine  to  have  been  applicable  to  the 


298  THE  GENEVA  TRIBUNAL 

But  Sir  Roundell  Palmer  proceeds  to  discover 
new  virtues  in  the  British  statute  of  neutrality.  Of 
the  Foreign  Enlistment  Act  of  1819,  he  says:  — 

case.  Sir  Alexander  found  room  in  his  dissenting  opinion  to  express 
views  upon  the  subject.  He  sees  in  the  consent  of  Great  Britain 
to  the  Three  Rules  "a  great  and  generous  concession."  Gen.  Arb.t 
vol.  iv,  p.  232. 

No  charge  of  bringing  this  irrelevant  enquiry  into  the  discussion 
is  to  be  laid  at  the  door  of  Great  Britain.  The  Case  of  the  United 
States,  with  some  emphasis,  lays  down  the  proposition  that  neutral 
obligations  were  not  in  the  least  changed  by  adopting  the  Three 
Rules.  It  proceeds  to  sustain  the  contention  by  citing  instances 
of  British  practice,  and  by  adding  numerous  extracts  from  writers 
upon  public  law. 

Of  course,  the  British  Counter-Case  had  to  say  something  by 
way  of  reply,  "since  the  Government  of  the  United  States  has 
thought  proper  to  enter  into  the  question  at  some  length."  (Gen. 
Arb.,  vol.  ii,  p.  216.)  It  accordingly  declares  that  the  doctrine  of  the 
Three  Rules  goes  "beyond  any  definition  of  neutral  duty  which 
up  to  that  time  had  been  established  by  the  law  or  general  prac- 
tice of  nations."  (Ibid.)  It  relegates  the  subject  to  a  note  (Ibid.,  p. 
395)  which  extends  through  several  pages  of  citations  from  writings 
upon  public  law,  among  them  an  article  in  the  American  Law  Re- 
view, of  January,  1871  (a  long  quotation),  which  article  Sir  Alex- 
ander likewise  cites,  terming  it  "learned  and  able."  (Gen.  Arb., 
vol.  iv,  p.  252.)  The  article,  which  fully  merits  the  praise  it 
elicited,  is  entitled  "  Contraband  of  War."  The  author  was  John 
Torrey  Morse,  Junior  (Harvard,  1860),  of  the  Boston  Bar.  Mr. 
Morse,  some  years  ago,  furnished  the  profession  with  two  works 
of  the  first  rank,  one  on  "  Arbitration  and  Award,"  the  other, 
on  "  Banks  and  Banking."  He  has  likewise  achieved  success  as  a 
biographer.  "  The  American  Statesmen  Series,"  under  his  editor- 
ship, has  given  to  literature  a  most  valuable  survey  of  the  polit- 
ical development  of  the  United  States;  and  Mr.  Morse's  contribu- 
tions thereto  have  been  of  the  best,  notably  his  "Abraham 
Lincoln." 

The  writer  of  that  article  aptly  remarks:  "It  was  not  because 


THE  TRIAL  299 

"  This  law  .  .  .  was  regarded  by  Her  Britannic  Maj- 
esty's advisers  not  only  as  prohibiting  all  such  expedi- 
tions and  armaments,  augmentation  of  the  force  of  arma- 
ments, and  recruitments  of  men,  as,  according  to  the 
general  law  of  nations,  would  be  contrary  to  the  duties 
of  a  neutral  State,  but  also  as  forbidding  the  fitting-out 
or  equipping,  or  the  special  adaptation,  either  in  whole 
or  in  part,  to  warlike  use,  within  British  jurisdiction,  of 
any  vessel  intended  to  carry  on  war  against  a  power  with 
which  Great  Britain  might  be  at  peace,  although  such 

the  Messrs.  Laird  sold  a  warship  to  the  Confederates  that  we  have 
a  claim  against  England  for  a  breach  of  international  law.  But 
it  was  because  collateral  arrangements  for  completing  the  equip- 
ment and  armament  of  the  ship  so  sold,  by  placing  on  board  officers 
and  crew,  guns  and  provisions,  rendered  the  entire  procedure,  ia 
fact,  the  inception  of  a  hostile  undertaking  from  the  confines  of 
a  neutral  country."  Gen.  Arb.,  vol.  ii,  p.  403. 

It  is  not  surprising,  therefore,  that  the  British  Counsel,  in  casting 
about  for  an  argument,  should  touch  upon  the  riglit  of  a  neutral 
citizen  to  sell  a  ship  to  a  belligerent,  even  if  that  argument  were 
to  little  purpose.  The  various  observations  upon  this  head,  con- 
tained in  the  record,  though  foreign  to  the  issue,  may  prove  to  be 
not  without  value  to  him  who  would  study  the  development  of  this 
branch  of  the  law  of  nations.  There  is  no  likelihood,  however,  that 
any  other  principles  will  prevail  in  the  future,  in  the  conduct  of 
neutrals  and  belligerents,  than  those  embodied  in  the  Three  Rules. 

Little  reason  can  exist  for  fearing  the  presence  some  day  upon 
the  ocean  of  a  new  Alabama.  The  time  cannot  be  far  off  when 
private  property  (not  contraband)  belonging  to  a  citizen  of  a 
belligerent  power,  will  be  safe  from  capture  at  sea,  because  of  an 
international  agreement  to  that  effect.  Nor  is  it  too  much  to  say 
that  certain  features  of  the  old  rules  have  become  obsolete  with 
the  abandonment  of  wooden  ships.  The  battleship  or  armored 
cruiser  of  to-day,  with  its  powerful  armament,  furnishes  conditions 
where  the  justice  and  the  propriety  of  the  Three  Rules  are  all 
the  more  plainly  apparent. 


300  THE  GENEVA  TRIBUNAL 

vessel  might  not  receive,  or  be  intended  to  receive,  any 
armament  within  British  jurisdiction;  and  although  she 
might  be  built  and  sold  by  shipbuilders,  in  the  ordinary 
course  of  their  trade,  to  the  order  of  a  belligerent  pur- 
chaser, so  as  not  to  offend  against  any  known  rule  of  in- 
ternational law."  l 

Such  had  not  been  the  construction  of  the  Act 
at  the  time  these  cruisers  were  allowed  to  escape. 
Captain  Bullock  (who  represented  the  Southern 
Confederacy  abroad,  in  the  matter  of  obtaining 
ships-of-war)  tells  us  that  before  he  entered  into 
negotiations  for  a  contract  to  build,  he  took  legal 
advice  at  Liverpool,  so  as  to  keep  strictly  within  the 
law.  He  meant  to  violate  no  written  law.  Public 
sentiment  at  Liverpool  was  so  strongly  in  favor  of 
the  South  that  he  evidently  had  no  fear  of  any 
"  unwritten  "  law.  Two  eminent  barristers,  both  of 
whom  afterward  filled  the  highest  judicial  positions, 
gave  it  as  their  opinion  that  the  mere  building  of  a 
ship  within  Her  Majesty 's  dominions  by  any  person 
(subject,  or  no  subject)  is  no  offence,  whatever  may 
be  the  intent  of  the  parties,  because  the  offence  is 
not  the  building,  but  the  equipping.2 

The  case  of  the  Alexandra  (1863)  furnished  an 
interpretation  of  the  Act,  to  the  effect  that  a  vessel 
specially  adapted  for  warlike  use,  but  not  armed, 
was  not  within  the  prohibition  of  the  Foreign  Enlist- 
ment Act.3  Sir  Roundell,  a  little  further  on  in  his 

1  Gen.  Arb.,  vol.  iii,  p.  388. 

2  Secret  Service  of  the  Confederate  States  in  Europe,  vol.  i,  p.  67. 

3  Gen.  Arb.,  vol.  i,  p.  105;  vol.  iii,  p.  272. 


THE  TRIAL  301 

supplementary  argument,  insists  (as  though  it 
were  material)  that  "  international  law  never  did 
require  a  neutral  Government  to  prohibit  and  pre- 
vent the  manufacture,  sale,  and  despatch  of  un- 
armed ships-of-war,  by  its  citizens  within  its  terri- 
tory, for  a  belligerent."  1 

But  the  stand  thus  taken  in  the  supplementary 
argument  that  the  Foreign  Enlistment  Act  did  pro- 
hibit the  building  of  the  Alabama — because  she  was 
"specially  adapted"  for  carrying  on  hostilities  — 
was  a  step  forward  from  the  position  assumed  in  the 
British  Argument,  where  it  is  said  that  its  provisions 
were  of  doubtful  construction;  and  where  the  plea 
was  put  forward  that  if  the  officials  honestly  under- 
stood those  provisions  in  a  less  stringent  sense,  Eng- 
land ought  not  to  be  considered  as  having  failed  in 
her  international  duty.2 

The  British  Arguments  occupy  time  in  attempting 
to  prove  how  suitable  and  complete  were  the  laws  of 
the  kingdom  in  providing  means  for  the  perform- 
ance of  England's  duty  as  a  neutral.  Sir  Roundell 
deals  liberally  in  abstract  propositions.  He  comes 
around  at  last,  however,  to  what  has  already  been 
pointed  out  as  constituting  the  main  ground  of  de- 
fence, namely,  the  proposition  that  Great  Britain 
had  provided  an  adequate  law,  and  had  honestly 
tried  to  execute  that  law.  Hence,  she  could  not  be 
held  liable.  This  idea  dominates  every  argument. 

"The  Government  of  a  civilized  nation,"  impressively 

i  Gen.  Arb.,  vol.  iii,  p.  424.  2  Ibid.,  p.  272. 


302  THE  GENEVA  TRIBUNAL 

remarks  Sir  Roundell,  in  this  last  supreme  effort  to  pre- 
vent the  Tribunal  from  going  astray,  "cannot  be  held 
wanting  in  due  diligence  if,  having  made  reasonable  pro- 
vision by  law  for  the  prevention  of  illegal  acts  of  this 
nature  on  the  part  of  its  citizens,  it  proceeds  to  deal  with 
all  such  cases  in  a  legal  course,  according  to  its  accus- 
tomed methods  of  civil  administration."  1 

If  the  Arbitrators  were  counting  upon  being  en- 
lightened by  new  reasons  from  the  Counsel  of  Great 
Britain,  they  must  have  been  disappointed.  The 
lawyer  who  resorts  to  this  supplementary  argument, 
in  the  expectation  of  viewing  a  masterpiece  of  foren- 
sic skill  and  logical  reasoning,  constructed  by  a  great 
leader  of  the  English  Bar,  will  likewise  meet  with 
disappointment.  I  have  examined  it  with  special 
care  —  some  parts  of  it  upon  more  than  one  occa- 
sion. Endeavoring  to  lay  aside  national  prejudice, 
and  yielding  to  that  sense  of  fraternal  sympathy 
which  our  profession  has  for  the  Counsel  who,  after 
having  fought  bravely,  loses  his  case,  I  am  com- 
pelled to  admit  that  there  is  lacking  in  Sir  Roundell's 
presentation  that  cogency  and  persuasiveness,  that 
acuteness  and  appositeness  —  in  fine,  that  weight  of 
reasoning  upon  the  exact  point  in  issue,  which  one 
has  the  right  to  look  for  in  the  work  of  a  great  lawyer 
conducting  a  great  cause. 

The  eminent  Counsel  himself  afterwards  com- 
plained that  the  questions  upon  which  he  had  sub- 
mitted his  supplementary  argument  had  been  pre- 

1  Gen.  Arb.,  vol.  iii,  p.  422. 


THE  TRIAL  303 

judged.  Sir  Roundell  had  a  sore  task  to  perform. 
He  was  virtually  arguing  for  a  new  trial  before  a 
Court  not  favorably  disposed  thereto.  Of  these 
eleventh-hour  efforts  Lord  Selborne  remarks:  — 

"  To  my  colleagues  they  gave  satisfaction;  and,  on  the 
other  side,  they  were  elaborately  answered.  But  after 
what  had  passed  in  the  previous  consultations  of  the 
Tribunal,  it  was  all  lost  labour;  not  Cicero  or  Demos- 
thenes, Vattel  or  Wheaton,  could  under  such  circum- 
stances have  produced  any  effect.  It  is  true,  that  upon 
all  the  Cases,  the  final  and  formal  vote  was  not  taken  till 
afterwards;  but  the  whole  thing  had  practically  been 
settled  before." l 

The  argument  submitted  upon  the  two  special 
questions  calls  for  no  extended  mention.  The  effect 
of  commissions  to  the  commanding  officers  of  the 
cruisers  was  the  subject  of  an  oral  argument,  in  reply, 
by  Mr.  Evarts.  The  delivery  of  this  speech  occupied 
the  time  of  the  Conferences  on  the  5th  and  6th  of 
August,  and  formed  a  pleasing  feature  in  the  record 
of  its  procedure.  Mr.  Evarts  displayed  a  remarkable 
power  in  holding  the  close  attention  of  his  hearers. 
This  power  was  the  more  striking  from  the  fact  that 
the  three  "  neutral "  Arbitrators  could  hardly  follow 
him,  because  of  their  slight  knowledge  of  English. 
However,  they  looked  wise,  and  sat  mute,  aware 
that  in  a  day  or  two  they  would  have  it  all  laid 
before  them  in  French.2  The  speaker's  voice  and 

1  Memorials,  vol.  i,  p.  259. 

*  The  secretaries,  for  two  nights,  worked  hard  until  early  morn- 


304  THE  GENEVA  TRIBUNAL 

manner  were  agreeable;  and  his  delivery  was  that  of 
an  advocate  fully  convinced  of  the  justness  of  his 
cause.  He  imitated  to  a  slight  extent  his  distin- 
guished opponent  by  touching  upon  one  or  two 
topics  other  than  that  which  had  been  specially 
assigned  to  him. 

Sir  Alexander  Cockburn  and  Mr.  Adams  listened 
most  attentively.  The  former  made  frequent  inter- 
ruptions. To  every  question  Mr.  Evarts  returned  an 
apt  reply.  He  seemed  to  like  to  be  questioned;  and 
the  interruptions  were  good-natured.  The  delivery 
of  this  oral  argument  was  in  all  respects  worthy  of 
the  high  reputation  of  the  distinguished  leader  of  the 
New  York  Bar. 

There  was  perhaps  no  special  need  of  extending 
the  argument  beyond  the  single  point  of  the  effect 
of  a  commission,  but  the  Tribunal  were  in  a  humor  to 
listen,  and  Mr.  Evarts's  mind  was  full  of  the  subject 
of  the  "  Alabama  Claims  "  in  general.  It  was  a  genu- 
ine pleasure  to  be  present,  as  I  was,  and  to  hear  what 
seemed  to  be  an  "  argument  to  the  Bench."  I  retain 
an  impression  that  a  chief  object  in  view  was  to 
reach  and  strengthen  Mr.  Adams,  —  particularly  as 
to  the  Georgia,  though  I  confess  that  I  am  unable 

ing,  in  order  to  get  the  copy  ready  for  the  press,  —  a  "  due  diligence  " 
and  a  zeal  that  brought  to  each  a  grateful  letter  from  Mr.  Davis, 
who  made  special  mention  of  their  services,  in  a  report,  to  Secre- 
tary Fish.  The  sheets  were  sent  to  Paris  for  translation  and  were 
there  printed  in  French.  Mr.  John  Davis  took  a  copy  to  London; 
and  in  a  surprisingly  short  time  he  returned  with  a  pamphlet, 
printed  in  handsome  style. 


THE  TRIAL  305 

now  to  perceive  how  that  could  have  been.  It  was  a 
part  of  the  gossip  of  the  hour,  let  me  add,  that  a  ma- 
jority of  the  Arbitrators  had  favored  our  winning 
the  case  of  the  Georgia,1  though  subsequently  a 
unanimous  decision  was  rendered  against  the  United 
States,  as  to  this  cruiser.2 

1  Davis  to  Fish,  MS.  Archives,  Department  of  State. 

8  The  decision  was  a  disappointment  to  Mr.  Davis.  In  a  con- 
fidential letter  to  Mr.  Fish,  he  speaks  of  a  concession  made  by 
Mr.  Adams,  at  total  variance  with  the  facts,  in  Mr.  Davis's  judg- 
ment, and  opposed  to  the  views  and  the  interests  of  the  Govern- 
ment of  the  United  States.  The  letter  was  written  before  the  de- 
cision as  to  the  Georgia  had  been  announced.  Later  upon  rendering 
his  opinion  in  the  case  of  that  vessel  Mr.  Adams  says:  "  In  the  case 
presented  on  the  part  of  the  United  States  it  is  urged  that  Her 
Majesty's  Government  might  have  gone  so  far  as  to  seize  the 
vessel  within  the  French  jurisdiction,  and  the  case  of  the  Terceira 
expedition  is  cited  as  a  precedent.  But  it  seems  to  me  that  the 
Government  of  the  United  States  would  scarcely  be  ready  to  con- 
cede the  right  of  a  foreign  power  to  settle  questions  of  justice 
within  its  jurisdiction  without  its  knowledge  or  consent"  (Gen. 
Arb.,  vol.  iv,  pp.  192-193). 

Of  this  statement  Mr.  Davis  writes  to  Secretary  Fish:  "Neither 
Counsel  nor  Agent  ever  dreamed  of  such  a  position.  We  were  sur- 
prised to  find  that  Mr.  Adams  had  made  such  a  mistake,  and  that 
he  should  have  felt  it  his  duty  to  comment  upon  it "  (MS.  Archives , 
Department  of  State). 

It  is  proper  to  add  that  the  American  Arbitrator  had  no  warmer 
admirer  than  Mr.  Bancroft  Davis. 

In  his  final  report  to  Mr.  Fish,  speaking  of  the  toleration  of  in- 
surgent operations  in  England,  and  of  English  feeling  against  the 
United  States,  Mr.  Davis,  after  quoting  from  Count  Sclopis  and 
from  Baron  d'ltajubd,  remarks:  — 

"  It  would  seem  from  some  of  Mr.  Adams's  expressions  that  he 
did  not  concur  in  these  views  of  his  colleagues.  While  regretting 
that  he  did  not  do  so,  because  the  views  seem  to  me  to  be  in 


306  THE  GENEVA  TRIBUNAL 

A  reply  to  Sir  Roundell  Palmer's  argument,  upon 
the  special  question  as  to  the  supply  of  coal  in  Brit- 
ish ports  to  Confederate  cruisers,  was  prepared  and 
submitted  by  Mr.  Waite.  It  is  written  clearly  and 
concisely,  in  excellent  tone  and  temper.  "  Thus  the 
nation,  whose  authority  *and  dignity  had  been  so 
grossly  offended  in  the  construction  and  outfit  of 
these  vessels,  was  the  first  to  grant  them  neutral 
hospitalities."  l  The  brief  keeps  strictly  to  the  point 
of  supplying  coal  as  in  the  nature  of  furnishing 
a  base  of  operations.  Such  was  the  modesty  of  the 
junior  member  of  the  Counsel  that  he  had  enter- 
tained no  thought  of  taking  a  part  alone  in  these 
replies.  It  was  only  at  the  solicitation  of  the  Agent 
of  the  United  States  that  Mr.  Waite  came  to  ac- 
knowledge that  duty  required  him  thus  to  appear 
individually  of  record.  His  argument  is  a  model  of 
simple,  direct  reasoning. 

The  office  fell  to  Mr/ Cushing,  as  senior  Counsel, 
to  prepare  a  reply  to  the  main  contention  of  the  sup- 
plementary argument  of  Great  Britain.  It  is  not 
too  much  to  say  that  there  was  no  American  lawyer 

accordance  with  the  facts,  and  also  in  accordance  with  general 
principles  which  all  maritime  powers  would  desire  to  maintain, 
I  must  bear  testimony  to  the  perfect  and  dignified  impartiality  with 
which,  not  only  in  this  respect,  but  throughout  the  proceedings, 
Mr.  Adams  maintained  his  position  as  a  judge  between  the  two 
contending  nations.  Of  him,  at  least,  it  maybe  said  that  his  love  of 
country  never  controlled  his  sense  of  justice,  and  that  at  no  time 
did  he  appear  as  an  advocate."  (Davis  to  Fish,  21  September,  1872, 
Gen.  Arb.,  vol.  iv,  p.  10.) 
1  Gen.  Arb.,  vol.  Hi,  p.  518. 


THE  TRIAL  307 

living  who  could  surpass  Mr.  Gushing  in  fitness  for 
this  duty.  In  the  field  of  public  law,  no  less  than  in 
that  of  familiarity  with  diplomatic  precedents,  he 
stood  almost  without  a  rival.  Though  past  three- 
score years  and  ten,  his  vigor  of  intellect  and  body 
continued  unimpaired.  Mr.  Cushing's  capacity  for 
work  was,  as  his  secretary  had  frequent  occasion 
to  know,  practically  without  limit.  He  therefore 
hailed  with  delight  the  opportunity  now  offered  for 
a  passage-at-arms  with  the  famous  leader  of  the 
English  Bar. 

That  Mr.  Gushing  improved  the  opportunity  to 
the  utmost  will  be  the  verdict,  I  think,  of  every 
lawyer  who  turns  to  the  Reply  Argument  of  6  Au- 
gust, 1872,  and  reads  it,  even  only  in  part.  Mr. 
Gushing  dictated  this  argument  to  me  in  French, 
almost  word  for  word  as  it  now  reads.  It  is  a  singu- 
larly able  paper.  It  says  just  what  ought  to  be  said. 
There  is  not  in  it  a  superfluous  sentence.  The  com- 
pactness of  the  reasoning,  the  rapidity  of  movement 
from  one  topic  to  another  (a  quality  which  adds  to 
the  force  of  a  style  in  itself  animated),  and  the  tone 
of  confidence  displayed  throughout,  combine  to 
render  the  reply  a  signal  example  of  a  triumph  in 
forensic  encounter.  Next  to  the  Case  of  the  United 
States,  this  paper  in  my  judgment  reaches  the  dis- 
tinction of  being  the  clearest  and  ablest  exposition 
of  the  subject-matter  of  the  controversy  that  is  to 
be  found  in  the  records  of  the  Tribunal. 

After  having  taken  under  consideration  the  case 


308  THE  GENEVA  TRIBUNAL 

of  the  Shenandoah,  the  Arbitrators  expressed  a  wish 
to  hear  the  point  elucidated  as  to  the  enlistment  of 
men  at  Melbourne.  Sir  Roundell  Palmer  prepared 
an  argument.1  He  did  not  confine  himself  to  the 
question  of  fact  as  to  the  number  of  men  enlisted. 
He  submitted  his  argument  with  some  verbal  obser- 
vations. Of  this  argument  Mr.  Davis  says  it  was 
"  long,  able,  and  at  times  eloquent." 2  When  he  had 
concluded,  Mr.  Gushing  said  to  the  Tribunal  that 
the  Counsel  for  the  United  States  had  drawn  up 
a  memorandum,  and  he  submitted  it  with  a  few 
pertinent  remarks.  He  closed  with  a  request  to  be 
informed  if  the  new  questions  raised  by  the  Counsel 
for  Great  Britain  remained  open  before  the  Tri- 
bunal. After  deliberation,  the  Tribunal,  by  a  vote 
of  four  to  one,  significantly  declared  that  they  had 
been  sufficiently  enlightened.3 

Another  request  from  the  British  Arbitrator  for 
further  elucidation  concerned  the  entry  of  the 
Florida  into  Mobile  (September,  1863),  a  port  of  the 
Confederate  States,  where  she  stayed  for  about  four 
months,  and  where  she  shipped  a  crew.  The  depre- 
dations of  the  Florida  were  committed  only  after  a 
second  evasion  of  the  blockading  fleet  off  Mobile,  by 
escaping  from  that  port.  The  Tribunal  adopted  the 
proposal  of  Sir  Alexander  Cockburn.  Sir  Roundell 

1  "  On  very  short  notice,  while  I  was  suffering  from  gout."   Me- 
morials, vol.  i,  p.  259. 

2  Letter,  Davis  to  Fish,  MS.  Archives,  Dept.  of  State. 

3  Gen.  Arb.t  vol.  iv,  p.  35. 


THE  TRIAL  309 

Palmer  prepared  an  argument,  of  no  great  length. 
One  of  the  English  secretaries  read  it  to  the  Tribunal 
on  the  23d  of  August.  It  maintained  that  any  respon- 
sibility that  Great  Britain  may  have  been  under 
came  to  an  end  when  the  Florida  once  was  at  home 
in  a  Confederate  port.  It  was  a  novel  point  to  raise. 
The  Counsel  for  the  United  States  did  not  take  Sir 
Roundell's  view.  Their  reply  (which  was  brief), 
though  signed  by  all  three  of  the  Counsel,  was  drawn 
up  by  Mr.  Evarts,  and  by  him  read  to  the  Tri- 
bunal.1 

Besides  the  cases  of  the  Florida  and  the  Alabama 
the  Tribunal  found  Great  Britain  responsible  for  all 
acts  committed  by  the  Shenandoah  after  her  depart- 
ure from  Melbourne  on  the  18th  day  of  February, 
1865,  because  of  an  augmentation  of  force  at  that 
port.  As  to  all  the  other  vessels,  there  was  no  finding 
against  Great  Britain,  except  that  tenders,  such  as 
the  Tuscaloosa  (tender  to  the  Alabama),  the  Clar- 
ence, the  Tacony,  and  the  Archer  (tenders  to  the  Flor- 
ida), being  auxiliary  vessels,  were  treated  as  following 
the  lot  of  their  principals,  so  that  Great  Britain  was 
held  to  be  responsible  for  their  depredations. 

1  Gen.  Arb.t  vol.  iii,  pp.  546-549. 


CHAPTER  IX 

THE  DAMAGES 

JOHN  BULL,  as  the  world  has  reason  to  know,  is 
eminently  practical.  Whenever  a  situation  begins 
to  take  on  a  look  of  touching  his  pocket,  he  can  be 
depended  upon  to  view  with  an  extremely  lively 
concern  what  is  going  forward.  A  French  writer, 
who  travelled  through  England  in  the  early  part  of 
the  last  century,  thus  speaks  of  a  trait  he  observed  in 
Englishmen:  "  They  love  money  so  much  that  their 
first  question  in  an  enquiry  concerning  the  character 
of  any  man  is  as  to  his  degree  of  fortune."  l  Nearly 
fifty  years  later  a  shrewd  yet  kindly  visitor  accom- 
plished a  like  journey,  taking  notes  here  and  there; 
and  when  he  returned  home,  he  found  it  convenient 
to  devote  an  entire  chapter,  "Wealth/'  to  what  he 
had  to  say  hi "  English  Traits  "  of  this  national  char- 
acteristic. 

It  is  well  understood  that  the  British  taxpayer, 
in  his  day  and  generation,  regularly  presents  him- 
self as  a  personage  with  whom  the  British  Govern- 
ment have  seriously  to  deal.  He  insists  on  being  told 
in  advance  for  what  ends  the  money  is  going  to  be 
used  that  he  is  called  upon  at  stated  periods  to  hand 
over  to  a  tax-collector.  He  finds  little  joy  in  the 

1  Fievte,  1803. 


THE  DAMAGES  311 

ceremony  of  paying  taxes;  but  he  means  to  get  at 
least  the  satisfaction  out  of  it  of  seeing  that,  down 
to  the  very  last  penny,  there  is  sufficient  warrant  for 
the  expenditure;  or,  else,  his  grumbling  will  break 
the  bounds  of  mere  habit,  and  assume  threatening 
proportions.  The  course  taken  by  the  Government 
is  sure  to  be  determined  largely  by  a  wholesome 
dread  of  the  taxpayer.  A  bold  act  was  it,  therefore, 
in  Mr.  Gladstone  to  commit  his  country  to  the  risk 
of  being  condemned  at  Geneva,  to  pay  a  bill  of  in- 
demnity.1 Taxpayers  had  to  be  reckoned  with.  They 
were  bound  to  make  a  great  ado  about  it.  But  Mr. 
Gladstone  had  the  courage  to  take  the  step,  and 
to-day  the  historian  praises  him  therefor. 

We  may  conceive  that  Great  Britain  sent  to 
Geneva  her  Agent  and  her  Counsel  charged  with  the 
duty,  —  first,  of  satisfying  the  neutral  Arbitrators 
that  no  responsibility  whatever  for  the  escape  of 
the  Confederate  cruisers  could  be  fastened  upon  the 
Government;  and  (in  case  the  Arbitrators  should 
prove  to  be  obstinate  in  respect  to  England's  al- 
leged good  behavior),  secondly,  of  reducing  the 
damages  just  as  much  as  possible,  even  down  to 

1  The  Annual  Register  for  1872  (p.  89),  speaking  of  the  difficulties 
attending  the  reception  in  England  of  the  "  Three  Rules  "  of  the 
Treaty  of  Washington,  says:  "Although  these  difficulties  were 
serious  enough  and  tended  greatly  to  increase  the  unpopularity  of 
the  entire  arbitration  scheme,  not  only  with  a  large  political  party 
but  with  the  public  in  general,  another  cause  of  dissension  which 
very  nearly  led  to  the  total  failure  of  the  negotiations  was  as  yet 
undeveloped  [the  '  indirect  claims ']. " 


312  THE   GENEVA  TRIBUNAL 

figures  merely  nominal.  Her  Counsel  made  a  deter- 
mined fight.  The  cause  indeed  could  not  have  been 
argued  better;  but  notwithstanding  their  specious 
reasoning,  their  earnest  and  emphatic  protestations, 
they  utterly  failed  in  their  endeavors.  England 
was  neglectful,  said  the  Arbitrators.  Now  came 
the  question,  —  and  it  was  by  no  means  an  easy 
question,  — What  ought  England  to  be  adjudged  to 
pay  for  her  neglect? 

So  long  as  the  argument  of  Counsel  confined  itself 
to  a  disquisition  upon  the  law  of  nations,  and  a  re- 
cital of  what  theretofore  had  been  the  practice  of 
neutral  Governments  in  time  of  war,  the  largeness 
of  the  topic  lent  dignity  to  the  mode  in  which  the 
hearing  proceeded.  A  liability  once  established, 
however,  and  the  controversy  resolving  itself  into 
a  procedure  where  one  party  is  casting  up  column 
after  column  of  figures,  and  the  other  discrediting 
them,  there  ensued  a  slight,  yet  visible,  lowering  of 
the  standard  of  discussion.  It  was  a  turning  from 
the  studied  harangue  of  the  Senate  Chamber  to  the 
bustle  of  the  market-place.  But  the  defenders  of 
Great  Britain  were  seen  to  be  not  a  whit  less  doughty 
and  alert  in  resisting  the  claims  set  forth  in  tables  of 
figures,  than  they  had  been  in  denying  the  principles 
which  affected  to  hold  a  neutral  Government  to  a 
strict  measure  of  international  obligation.  Indeed, 
the  British  Agent  and  Counsel,  when  decrying  the 
amounts  insisted  upon  by  the  United  States,  seemed 
to  feel  themselves  planted  on  firmer  ground  than 


THE  DAMAGES  313 

that  which  they  had  occupied  while  contending  for 
a  broad  construction  of  the  law  defining  neutral 
duties. 

It  is  to  be  noted  that,  while  the  subject  of  damages 
is  discussed  at  considerable  length  in  the  Arguments 
of  both  parties,  neither  the  Case  nor  the  Argument 
of  the  United  States  names  a  specific  sum  as  a  total 
estimate  of  damages.  Indeed,  the  Case  admits  the 
impossibility  of  presenting  a  detailed  statement  (1) 
of  damages  to  persons  growing  out  of  the  destruc- 
tion of  vessels.  It  did,  however,  present  (2)  a  claim 
in  a  certain  amount  for  the  expenditures  of  the  pur- 
suit of  the  cruisers.  It  asked  the  Tribunal  to  esti- 
mate (3)  the  amount  which  ought  to  be  paid  for  the 
transfer  of  the  American  commercial  marine  to 
the  British  flag,  adducing,  however,  no  figures.  It 
brought  to  the  attention  of  the  Tribunal,  so  far  as 
it  had  come  to  the  knowledge  of  the  Department 
of  State,  the  amount  of  the  enhanced  payments  of 
insurance.  The  last  two  items  went  out  of  the  com- 
putation as  being  "  indirect  claims."  The  claim  for 
expenditures  for  the  pursuit  of  the  cruisers  was  re- 
jected by  the  Tribunal  (as  appears  by  the  Protocol 
of  the  Conference  of  the  29th  of  August)  on  the 
ground  that  the  sum  so  expended  was  comprised  in 
the  cost  of  the  war.  Mr.  Staempfli  and  Mr.  Adams, 
however,  deemed  it  admissible  as  a  direct  national 
loss,  which  indeed  it  logically  seems  to  have  been.1 

1  See  post,  Appendix  V,  for  an  examination  of  this  interesting 
question. 


314          THE  GENEVA  TRIBUNAL 

This  action  left  remaining  only  a  single  item  of  dam- 
ages, —  that  for  injuries  inflicted  upon  persons  or 
corporations,  owners  of  ships  or  cargoes,  or  upon 
officers,  or  crews,  of  the  captured  vessels. 

The  importance  of  the  disposition  by  the  Tribunal 
of  the  "  indirect  claims  "  is  not  likely  to  be  overesti- 
mated in  the  future.  While  it  may  be  contended 
that  the  announcement  of  19th  June,  1872,  was 
not  a  judgment,  but  a  declaration,  still  the  conclu- 
sion reached  carries  the  weight  of  a  thoroughly  con- 
sidered decision.  We  may  pronounce  it  practically 
a  decision  to  the  effect  that  claims  for  the  cost  of  a 
war,  or,  as  they  are  fitly  denominated,  "national 
claims,"  do  not  constitute,  upon  principles  of  inter- 
national law  applicable  to  such  cases,  good  founda- 
tion for  an  award  of  compensation  or  computation 
of  damages  between  nations  for  a  neglect  of  neutral 
duties.  The  effect  of  this  decision  was  to  rule  out 
a  claim  for  about  $7,000,000,  representing  money 
which  had  been  expended  by  the  Government  in  fit- 
ting-out and  maintaining  ships  of  the  Navy,  engaged 
in  hunting  over  the  ocean  for  the  Confederate 
cruisers.  The  other  item  of  claim,  namely,  war- 
premiums,  was  rejected.  It- will  be  recalled,  how- 
ever, that  when  Congress  came  to  provide  for  the 
distribution  of  the  money  received  under  the  award, 
war-premium  claimants  were  recognized,  and  a 
moderate  percentage  of  the  amount  of  their  claims 
paid  to  them. 

The  question  at  last  presented  itself:  How  much 


THE  DAMAGES  315 

of  the  sum  total  of  the  claims  filed,  in  respect  to  the 
vessels  for  which  Great  Britain  was  held  respons- 
ible, should  be  allowed.  Here  there  was  indeed  a 
field  open  for  guesswork.  At  one  time  Mr.  Davis 
thought  it  likely  that  the  damages  awarded  would 
be  somewhere  between  $25,000,000  and  $30,000,000. ' 
Before  proceeding  to  inform  the  reader  how  the 
Arbitrators  answered  this  question,  let  me  say  a 
word  as  to  the  general  defence  set  up  by  Great  Brit- 
ain to  the  claim  for  damages.  If,  from  a  fastidious 
point  of  view,  the  Agent  and  Counsel  of  the  United 
States  had  fairly  laid  themselves  open  to  censure 
for  proffering  claims  which  afterwards  they  could 
not  sustain,  the  ingenious  Counsel  to  whom  was  en- 
trusted the  defence  of  Great  Britain  may  be  con- 
sidered to  have  earned  the  privilege  of  a  mild  rebuke 
for  the  lengths  to  which  they  resorted  in  their  at- 
tempt to  convince  the  Tribunal  that  their  country- 
was  not  liable  at  all  in  damages.  To  refer  to  a  single 
one  of  then*  positions  only:  it  will  seem  almost  in- 
credible, but  it  is  a  fact,  that  Counsel  actually  ad- 
vanced the  argument  that  these  losses  had  been 
caused  by  the  Confederate  States;  that  the  acts  were 
done  beyond  the  jurisdiction  and  control  of  Great 
Britain;  that  the  very  States  that  did  the  wrong 
were  a  part  of  the  United  States,  and  therefore  that 
there  could  properly  be  no  recovery  of  damages 
against  Great  Britain. 

"  They  have  been  readmitted  to  their  former  full  par- 
1  MS.  Letter,  Davis  to  Fish,  Archives,  Department  of  State. 


316          THE  GENEVA  ^TRIBUNAL 

ticipation  in  the  rights  and  privileges  of  the  Federal 
Constitution.  They  send  their  members  to  the  Senate 
and  the  House  of  Representatives;  they  take  part  in  the 
election  of  the  President;  they  would  share  in  any  benefit 
which  the  public  revenue  of  the  United  States  might 
derive  from  whatever  might  be  awarded  by  the  Arbi- 
trators to  be  paid  by  Great  Britain."  l 

The  Treaty  provided  that  in  case  the  Tribunal 
should  find  that  Great  Britain  had  failed  to  fulfil  any 
of  the  duties  set  forth  in  the  Three  Rules,  it  might 
award  a  sum  in  gross,  to  be  paid  in  coin  by  Great 
Britain  to  the  United  States,  at  Washington,  within 
twelve  months  after  the  date  of  the  award :  or  that  a 
Board  of  Assessors  should  be  appointed,  to  ascertain 
what  claims  were  valid,  and  what  claims  should  be 
paid,  et  cetera. 

Obviously,  it  was  much  to  be  preferred  that  a  sum 
in  gross  be  awarded.  Such  a  payment  would  speed- 
ily end  all  differences  growing  out  of  the  depreda- 
tions of  the  cruisers;  and  one  signal  purpose  the 
Treaty  had  in  view  was  a  removal  of  the  cause  of 
dissension  at  the  very  earliest  moment.  Secretary 
Fish,  in  a  letter  of  instructions  sent  to  each  of  the 
Counsel  (8  December,  1871),  said:  "The  President 
has  directed  me  to  urge  upon  you  strongly  to  secure, 
if  possible,  the  award  of  a  sum  in  gross." 2  We  find 
Mr.  Davis  writing  by  the  middle  of  August  to  Mr. 
Fish  that  it  appeared  that  the  Englishmen  had  made 

1  Gen.  Arb.,  vol.  ii,  p.  381. 

2  Papers,  vol.  ii,  p.  416. 


THE  DAMAGES  317 

up  their  minds  to  prevent  a  gross  award.1  On  the 
25th  August,  1872,  Mr.  Davis  reports  to  Mr.  Fish 
that  "the  delivery  of  opinions  has  left  our  English 
friends  in  a  more  excited  state  than  I  have  yet  seen 
them."  Yet  Chief  Justice  Cockburn,  in  his  dissent- 
ing opinion,  declares  that  it  is  desirable  to  settle  the 
matters  in  dispute  as  soon  as  possible,  and,  there- 
fore, pronounces  hi  favor  of  awarding  a  lump  sum, 
which  he  fixes  at  $8,000,000. 2 

Mr.  Beaman  prepared  volume  seven  of  the  Docu- 
ments, Correspondence,  and  Evidence  submitted 
with  the  Case.  This  volume  contains  a  list  of  private 
claims,  classified  under  the  name  of  the  captured 
vessel.  The  arrangement  also  shows  the  losses, 
grouped  under  the  titles  of  the  respective  cruisers. 
The  list  presents  an  abstract  of  names  and  amounts, 

1  MS.  Letter,  Davis  to  Fish,  Archives,  Department  of  State. 
"  You  ask  in  your  note  to  me  what  the  English  are  after.  Simply 
this,  I  think:  They  have  been  forced  to  conclude  that  they  are  to 
have  some  award  made  against  them  at  Geneva;  and  they  not 
only  want  to  reduce  the  amount,  by  every  captious  objection,  to 
the  lowest  possible  sum,  but  they  are  sore  and  ill-natured  at  the 
thought  of  having  anything  to  pay  at  all.  I  believe  that  they 
would  rather  give  us  (much  as  they  love  money)  $20,000,000  in  a 
secret  way,  though,  to  square  accounts,  than  to  have  $1,000,000 
publicly  adjudged  to  be  due  and  be  compelled  ,to  pay  it.  Only 
think  what  a  very  bitter  pill  it  must  be  to  Great  Britain,  after 
being  so  long  accustomed  to  extort  satisfaction  from  other  nations, 
to  find  a  Government  that  makes  her  first  own  her  wrong  in  a 
Treaty,  and  then  pay  up!  That  touches  her  to  the  quick,  however 
magnanimous  may  be  her  professions."  MS.  Letter,  Schenck  to 
Davis,  1  September,  1872,  Archives,  Department  of  State. 

8  Gen.  Arb.,  vol.  iv,  pp.  536,  542. 


318          THE  GENEVA  TRIBUNAL 

together  with  a  mention  of  papers  on  file  in  the  De- 
partment of  State.  It  bears  date  4  October,  1871.  A 
revised  list,  dated  15  March,  1872,  was  submitted 
with  the  Counter-Case,  in  April  following. 

The  Arbitrators  requested  both  parties  to  prepare 
tables  of  figures.  The  British  Agent  had  previously 
submitted  the  list  of  claims  to  a  committee  of  the 
Board  of  Trade  at  London,  consisting  of  Mr.  Arthur 
Cohen,  a  barrister  practising  in  the  Court  of  Ad- 
miralty, and  Mr.  Sydney  Young,  one  of  the  assessors 
of  that  court.  The  two  executed  faithfully  the  task 
set  for  them,  which  involved  a  prodigious  labor. 
They  took  up  each  claim,  and  tested  it  in  various 
ways.  By  this  means  they  effected  a  large  reduc- 
tion in  the  totals.  Mr.  Cohen  (subsequently  Queen's 
Counsel  and  M.P.)  came  to  Geneva,  bringing  with 
him  the  tables  prepared  at  the  Admiralty  Court 
and  Board  of  Trade.  Mr.  Young  was  also  in  attend- 
ance. Mr.  Cohen  was  busily  employed  in  the  work 
of  investigating  the  figures  of  the  United  States, 
with  a  view  to  bringing  them  down  to  the  lowest 
amount.  It  is  not  easy  to  decide  whether  he  or  Mr. 
Beaman  worked  the  harder  over  these  tables.  Mr. 
Davis  wrote  to  Mr.  Fish  commending  the  assidu- 
ous labors  of  Mr.  Beaman  as  something  that  de- 
served the  highest  praise,  performed  as  they  were 
at  a  critical  time,  with  admirable  skill  and  judg- 
ment.1 

1  "During  the  past  fortnight,  or  three  weeks,  we  have  been 
very  busy  getting  ready  for  the  question  of  damages,  which  will 


THE  DAMAGES  319 

There  will  be  found,  in  a  note  appended  to  the 
Argument  of  the  United  States,  an  exposition  of 
these  various  classes  of  individual  claims.1  The  result 
of  the  investigation  conducted  by  Messrs.  Cohen 
and  Young  is  commented  upon;  and  reasons  are 
adduced  to  sustain  the  higher  valuation  claimed  on 
behalf  of  the  United  States.  A  letter  from  William 
W.  Crapo,  a  leading  lawyer  of  New  Bedford,  affords 
much  interesting  information  with  regard  to  whal- 
ing voyages,  a  subject  about  which  most  people 
know  little  or  nothing.  It  explains  the  method  by 
which  men  who  ship  upon  whalers  take  their  chances 
of  sharing  in  the  fortunes  of  the  voyage.  The  "pro- 
spective catch"  is  the  interest  which  a  seaman  has 
in  the  results  of  the  whaling  season.  They  are  paid 
wages  not  in  money,  but  in  "  lays  "  or  shares  in  the 
oil  and  bone  taken. 

"As  certain  as  the  harvest  to  the  farmer  is  the  catch 
of  oil  to  the  whaleman.  The  average  catch  of  whales 

be  reached  as  soon  as  the  vote  is  taken  on  Friday.  The  young 
men  have  been  occupied  late  at  night  every  evening  in  copying. 
I  have  also  had  an  accountant  from  Bowles  Brothers,  and  several 
writers  from  Geneva.  ...  It  is  only  simple  justice  to  Mr.  Bea- 
man  to  say,  without  his  untiring  labor  and  intelligent  superintend- 
ence, this  work  could  not  have  been  accomplished."  Davis  to 
Fish,  22  August,  1872,  MS.  Archives,  Department  of  State.  One 
day,  when  I  wanted  to  see  Beaman  for  a  moment,  I  went  to  his 
room,  where  I  found  him  seated  at  a'table,  which  was  heaped  with 
papers.  On  the  other  side  sat  Cohen,  in  his  shirt-sleeves,  intent 
on  his  work.  "  I  am  trying  to  see,"  said  Beaman  to  me  with  a  twinkle 
of  the  eye,  "  if  I  can  add  up  faster  than  Cohen  can  subtract." 
1  Gen.  Arb.,  vol.  iii,  pp.  248-255. 


320  THE  GENEVA  TRIBUNAL1 

is  well  known  and  understood  by  the  merchant  and  the 
seaman.  Upon  this  knowledge  of  probable  average  catch 
the  sailor  readily  procures  an  advance  before  sailing,  and 
his  family  obtain  necessaries  and  a  support  during  his 
absence."  l 

It  is  to  be  observed  that  the  Tribunal,  while  re- 
jecting claims  for  prospective  profits,  reserved  the 
question  as  to  allowance  in  the  nature  of  wages  in 
the  case  of  the  whalers ;  and  it  may  be  presumed  that 
they  granted  something  on  this  account.2 

Sir  Roundell  Palmer  prepared  and  laid  before 
the  Tribunal  an  elaborate  argument  upon  the 
subject  of  interest.  His  chief  point  seemed  to  be 
that  the  present  proceeding  was  not  a  case  of  delay 
in  the  payment  of  a  liquidated  debt;  that  to  allow 
interest  in  a  proceeding  for  unliquidated  damages 
is  to  impose  a  penalty.  The  learned  Counsel  brought 
in  from  the  Counter-Case  the  absurd  argument 
which  has  been  in  part  already  cited.  He  seriously 
contended  that  the  eleven  States  composing  the 
Southern  Confederacy  were  now  joining  in  pressing 
these  claims;  that  if  Great  Britain  be  held  respons- 
ible, she  would  really  have  a  claim  for  indemnity 
against  these  eleven  States;  that  if  everything  has 

1  Gen.  Arb.,  vol.  iii,  p.  254. 

2  The  Court  of  Commissioners  of  Alabama  Claims  was  author- 
ized, by  the  Act  of  1874,  to  allow  one  year's  wages  to  officers  and 
seamen.  A  fairly  correct  estimate  of  the  value  of  oil  and  bone  was 
obtained  from  quotations;  and  the  Judges  approximated  as  nearly 
as  they  might  what  was  a  fair  allowance  of  this  nature.  Frank  W. 
Hackett:  Geneva  Award  Acts,  pp.  59,  60. 


THE  DAMAGES  321 

been  condoned  to  them  by  the  Federal  Government, 
it  would  be  inconceivable  that  a  penalty  should  be 
imposed  by  way  of  augmentation  of  damages.  It 
is  difficult  to  imagine  that  such  an  argument  as 
this  could  actually  have  been  brought  forward  with 
a  serious  expectation  of  success.  Another  objection 
raised  by  Counsel  is,  that  the  United  States  had 
had  an  opportunity  under  the  Johnson-Clarendon 
Treaty  to  settle  these  claims;  and  therefore  no  inter- 
est should  be  allowed  after  1869.  Then,  the  Tri- 
bunal is  advised  that  the  value  of  the  dollar  was 
enormously  depreciated  by  reason  of  the  war,  and 
that  an  award  against  Great  Britain  now  would 
give  every  claimant  a  direct  gain  of  over  twenty- 
five  per  cent.  The  argument  is  carried  along  at 
considerable  length.  It  does  not  seem,  however,  to 
be  very  convincing.  The  reply  argument  by  the 
Counsel  for  the  United  States  was  brief.  It  con- 
fined itself  to  showing  that  the  claimant  is  not 
compensated  for  his  loss  unless  interest  be  allowed. 

We  may  anticipate  the  order  of  time  by  observ- 
ing that  the  Arbitrators  took  precaution  that  no 
intimation  should  reach  the  public  as  to  the  mode 
followed  in  computing  the  amount  of  the  award. 
Sir  Alexander  Cockburn  in  his  opinion  (inadvert- 
ently, it  may  be  imagined)  discloses  the  fact  that 
the  Arbitrators  allowed  six  per  cent  interest.1 

A  vigorous  opposition  was  set  up  by  the  British 
Agent  to  the  course  of  the  United  States  in  sub- 

1  Gen.  Arb.,  vol.  iv,  p.  543. 


322  THE  GENEVA  TRIBUNAL 

mitting  to  the  Tribunal  the  proof  of  additional  pri- 
vate claims.  Lord  Tenterden  insisted  that  it  was 
too  late  to  add  to  the  list  of  claims  after  once  it  had 
been  submitted.  It  does  not  appear  that  the  Tri- 
bunal announced  any  special  ruling  upon  the  point, 
but  there  is  some  ground  for  inference  that  the 
Arbitrators  did  not  feel  themselves  restricted  in 
this  particular. 

One  afternoon,  when  the  battle  of  the  figures  was 
at  its  height,  an  incident  occurred,  a  mention  of 
which  should  not  be  omitted  from  this  narrative. 
Lord  Tenterden  was  just  finishing  the  reading  of 
a  paper,  in  which  he  had  in  scarcely  veiled  terms 
attributed  to  the  Agent  and  Counsel  of  the  United 
States  improper  motives  in  presenting  the  table  of 
claims;  and  he  moved  the  Tribunal  that  they  dis- 
allow the  tables  so  presented.  Upon  submitting  the 
motion,  Lord  Tenterden  betrayed  the  nervous  ex- 
citement under  which  he  was  acting. 

Sir  Alexander  Cockburn,  at  that  moment,  with 
a  good  deal  of  warmth  took  up  the  subject,  and  in 
a  tone  and  in  language  bordering  upon  the  offens- 
ive, virtually  charged  the  Agent  and  Counsel  of 
the  United  States  with  preferring  claims  which  they 
knew  were  fictitious.  I  do  not  pretend,  of  course, 
to  recite  other  than  the  purport  of  Sir  Alexander's 
words.  The  substance  of  the  charge  I  distinctly 
remember.  It  was  a  remark  hastily  thrown  out, 
and  perhaps  it  sounded  worse  than  the  speaker 
really  intended.  Quick  as  a  flash  Mr.  Adams,  rising 


THE  DAMAGES  323 

to  his  feet  at  the  other  end  of  the  Bench,  and  turn- 
ing half  around  so  as  to  face  the  Lord  Chief  Justice, 
exclaimed  in  a  voice  quivering  with  emotion,  "I  will 
not  sit  here,  on  this  Tribunal,  and  hear  my  country 
traduced."  With  that  Mr.  Adams  moved  as  if  to 
descend  from  the  Bench  and  leave  the  room.  For  a 
moment  there  was  silence  and  a  dread  on  the  part 
of  all  of  us  as  to  what  was  to  follow.  Sir  Alexander 
wore  a  look  as  if  conscious  of  having  gone  too  far. 
Count  Sclopis  arose  and,  extending  his  hands,  spoke 
a  word  or  two  calmly,  but  with  an  air  of  supreme 
authority,  to  soothe  the  two  men  thus  antagonized. 
Under  the  influence  of  the  kindly  yet  firm  bearing 
of  the  President,  the  Englishman  (to  his  credit  be  it 
said)  offered  suitable  words  of  apology.  Mr.  Adams 
resumed  his  seat.  It  was  all  over  in  an  instant. 

This  was  the  only  occasion  when  I  was  present 
and  saw  anything  that  in  the  remotest  degree  in- 
dicated a  lack  of  personal  harmony  among  the  mem- 
bers of  the  Tribunal.  It  may  be  said  in  extenuation 
of  the  Lord  Chief  Justice  that  probably  he  was  over- 
worked, that  for  days  and  nights  he  had  kept  him- 
self under  such  a  severe  strain  that  his  irritability 
knew  no  bounds,  with  the  result  that  a  natural 
impetuousness  and  an  infirmity  of  temper  for  the 
moment  got  the  better  of  his  judgment. 

The  task  of  fixing  upon  an  amount  of  damages 
was  much  lightened  by  the  labors  of  Mr.  Staempfli, 
who  seemed  to  enjoy  the  drudgery  of  going  through 
the  mass  of  figures.  He  and  Mr.  Adams,  it  seems, 


324  THE  GENEVA  TRIBUNAL 

were  in  favor  of  finding  a  much  larger  sum  than 
that  named  in  the  award.1 

After  prolonged  scrutiny  the  Tribunal,  on  the 
2d  September,  arrived  at  the  figures  of  a  gross  sum 
which  they  thought  should  be  awarded.  The  amount 
was  fifteen  millions  five  hundred  thousand  dollars, 
to  be  paid  in  gold  within  one  year.  Mr.  Gushing 
thinks  that  the  estimate  of  Mr.  Staempfli  had  been 
used  as  a  basis.  By  taking  the  difference  between 
the  American  estimate  of  $14,400,000  in  round 
numbers,  and  the  British  estimate  of  $7,000,000, 
one  reaches  a  sum  that,  with  interest,  brings  out 
something  very  near  the  actual  figures.2 

There  is  reason  to  believe  that  the  Agents  of  the 
respective  Governments  were  not  long  unadvised 
of  the  nature  of  the  decision  reached  by  the  Arbi- 
trators. A  confidential  message  from  Mr.  Davis 
in  cipher  went  to  Secretary  Fish  on  the  3d  Sep- 
tember giving  the  result  substantially.  The  secret 
was  well  kept. 

Having  thus  fixed  the  amount  that  Great  Britain 
should  pay  to  the  United  States  in  satisfaction  of 
all  the  Alabama  claims,  the  Tribunal  prepared  in 
French  a  draft  of  their  decision.  They  asked  Mr. 
Adams  and  Sir  Alexander  Cockburn  to  provide  for 
the  translation  of  the  French  text  into  English. 

»  MS.  Letter,  Davis  to  Fish,  17  October,  1872,  Archives,  Depart- 
ment  of  State. 

2  The  Treaty  of  Washington,  p.  167.  On  2d  September  a  ma- 
jority of  four  to  one  decided  that  interest  should  be  admitted  as 
an  element  in  the  calculation  for  the  award  of  a  sum  in  gross. 


THE  DAMAGES  325 

Three  days  later,  on  Monday,  9th  September,  the 
American  and  British  Arbitrators  presented  their 
translation;  and  the  Tribunal  adopted  it  as  the  act 
of  decision.  They  agreed  that  the  paper  should  be 
signed,  as  the  final  act  of  the  Tribunal,  on  Satur- 
day, 14th  September,  at  half-past  twelve  o'clock 
in  the  afternoon,  at  a  conference,  then  to  be  held 
with  open  doors. 


CHAPTER  X 

THE    AWARD 

No  sooner  had  our  little  party  alighted  at  the  hotel, 
upon  our  arrival  at  Geneva  on  14th  June,  the  day 
before  that  fixed  by  the  Tribunal  to  reassemble, 
than  representatives  of  the  English  and  American 
press  called  to  see  and  "interview"  (if  they  might) 
the  Counsel  for  the  United  States.  Everybody  was 
in  a  state  of  more  or  less  feverish  anxiety,  hope- 
lessly ignorant  whether  the  Arbitration  would  go 
on,  or  the  scheme  break  down  hi  lamentable  failure. 
Either  result  was  of  vital  moment  to  a  "waiting 
public."  The  men  charged  with  the  duty  of  send- 
ing out  news  to  their  respective  journals  were  fully 
alive  to  the  critical  import  of  the  situation.  Seldom 
had  there  been  seen  a  state  of  tension  of  a  nature  so 
extraordinary. 

My  recollection  is  that  the  moment  General 
Gushing  had  seated  himself  in  the  waiting-room  of 
the  Beau  Rivage  he  became  the  centre  of  a  large 
group  of  newspaper  correspondents.  He  was  not 
in  the  least  disturbed.  He  had  a  quiet  smile  for 
every  one.  Being  an  old  campaigner,  he  knew  just 
how  to  meet  the  questions  volleyed  at  him.  As  I 
stood  by,  I  could  not  help  being  struck  with  the 
superior  quality  of  these  representatives  of  the 


THE  AWARD  327 

press.  To  a  man  they  seemed  determined  to  respect 
the  requirement  that  necessity  had  imposed,  — 
that,  for  at  least  the  time  being,  the  Arbitrators, 
and  all  persons  officially  connected  in  whatever 
capacity  with  the  Tribunal,  should  maintain  strict 
silence  concerning  anything  they  might  know  as 
being  said,  done  or  even  thought  of  in  respect  to  the 
crisis  then  at  its  height.  The  reporters  understood 
precisely  the  reasons  for  so  strict  a  rule,  and  so  far 
from  chafing  under  it,  they  cheerfully  did  their  part 
to  support  the  authority  of  the  Tribunal. 

The  case  seldom  occurs  that  a  critical  state  of 
affairs  between  two  great  nations  demands  on  the 
part  of  the  representatives  of  the  press  that  degree 
of  self-restraint  called  for  on  this  particular  occa- 
sion. The  journalists  present  governed  themselves 
under  the  conviction  that  whatever  step  was  about 
to  be  taken  should  be  free  of  the  embarrassment 
which  a  premature  publicity  might  create.  Says 
one  of  their  number,  writing  at  a  later  date  (15 
September) :  — 

"The  journalists  here  did  not  work  a  prosperous  mine. 
The  rule  of  secrecy  adopted  by  the  Tribunal  at  its  first 
meeting,  and  so  successfully  observed,  was  a  declaration 
of  war  against  a  class  of  men  whose  professional  duties 
were  by  no  means  hostile  to  the  interests  of  the  Arbitra- 
tion. Nevertheless  they  accepted  the  situation  in  a  good 
spirit."  l 

1  Herbert  Tuttle:  Letter  to  Boston  Daily  Advertiser,  I  October, 
1872.  One  of  the  brightest  of  a  group  of  clever  young  men  engaged 


328          THE  GENEVA  TRIBUNAL 

So  difficult  was  it  to  glean  even  the  scantiest  in- 
formation, that  every  correspondent  made  the  best 
of  it,  and  uncomplainingly  set  to  work  turning  out 
his  regular  supply  of  bricks  without  straw.  A  phrase 
which  made  its  appearance  time  and  again  was  - 
"I  have  reason  to  believe."  A  fairly  good  guess  did 
royal  service;  and  it  was  no  unusual  feat  to  dress 
up  the  obvious  in  a  robe  of  mystery  —  so  that  the 
reader  of  a  morning  journal  felt  satisfied  that  his 
informant  had  penetrated  to  the  heart  of  things, 
and  knew  vastly  more  than  he  thought  it  discreet 
to  divulge.  The  gorgeously  bedizened  beadle  who 
stood  guard  over  the  closed  doors  at  the  Hotel  de 
Ville  rose  into  international  consequence;  and  when 
Viscount  d'ltajuba  was  seen  coming  out  of  the 
Conference  chatting  with  Bancroft  Davis,  the  oc- 
currence had  a  world  of  meaning  for  the  morrow. 
Assuredly  never  before  in  newspaperdom  had  so 
attenuated  a  rivulet  pushed  its  industrious  way 
through  such  an  immense  meadow  of  margin.  For 
one  August  day,  the  correspondent  of  the  London 
Times  writes:  — 

"I  much  regret  that  owing  to  the  profound,  and  doubt- 
less indispensable,  mystery  in  which  the  proceedings  of 
the  Tribunal  are  enveloped,  I  should  be  reduced  to  send- 
in  newspaper  or  magazine  work  at  Geneva,  at  that  season,  was 
this  keen-sighted,  and  remarkably  interesting  writer.  His  letters 
possess  a  literary  flavor  that  even,  after  the  lapse  of  years,  renders 
them  worth  reading;  nor  is  it  extravagant  to  say  that  here  and 
there  they  betray  almost  the  touch  of  genius. 


THE  AWARD  329 

ing  you  the  menu  of  a  dinner,  in  lieu  of  the  summary  of 
a  decision." 

For  the  entire  period  that  we  were  abroad  we  had 
daily  occasion  to  observe  that  the  New  York  Herald 
was  looked  upon  in  Europe  as  par  excellence  the 
newspaper  that  reflected  American  public  senti- 
ment. I  am  not  saying  that  the  belief  was  well 
founded.  I  simply  state  that  it  existed.  The  Herald 
had  sent  to  Geneva,  according  to  my  recollection, 
its  foreign  manager,  Doctor  George  W.  Hosmer, 
whose  office  was  in  London,  a  gentleman  of  fine 
abilities;  together  with  a  special  correspondent  in 
the  person  of  Doctor  Sauer.  That  brilliant  writer 
John  Russell  Young  had  likewise  put  his  talent 
at  the  disposal  of  the  Herald.  I  think  I  recall  meet- 
ing "Sam  Glenn"  there  (who  wore  glasses),  a  war- 
correspondent  whom  I  had  known,  either  at  Fort- 
ress Monroe,  or  in  the  Sounds  of  North  Carolina. 
I  do  not  remember  what  newspaper  he  represented 
at  Geneva.  The  late  Herbert  Tuttle  sent  letters  to 
the  New  York  Tribune  and  to  the  Boston  Daily 
Advertiser.1 

Doctor  Hosmer  says:  — 

"Laurence  Oliphant  [for  the  Times]  was  one  of  the 
older  set  of  the  Times  men,  a  gentleman,  —  genial  and 

1  "  He  was  the  most  scholarly  man  there  —  not  exactly  a  corre- 
spondent, but  an  historical  student,  and  afterwards  a  professor 
of  history,  I  think  at  Cornell,  —  and  wrote  books."  MS.  Letter  of 
Samuel  Arthur  Bent  (28  October,  1907),  to  whom  I  am  indebted 
for  information  on  this  subject. 


330  THE  GENEVA  TRIBUNAL 

very  clever,  with  a  strain  of  the  mystic,  as  it  appeared 
in  his  relations  with  Noyes  of  the  Oneida  Community. 

"  Mr.  Le  Sage  was  there  for  the  Daily  Telegraph,  at  pre- 
sent, I  believe,  the  managing  editor  of  that  paper.  He  was 
a  very  clever  reporter,  and  wrote  readable  letters  on  the 
obvious  aspects  of  the  occasion. 

"  Richard  Whiteing  was  one  of  the  clever  men  at 
Geneva.  He  represented  the  Manchester  Guardian,  and 
the  New  York  World.  These  papers  cooperated,  as  did 
the  Daily  Telegraph  and  the  New  York  Herald.  White- 
ing  has  recently  gained  distinction  as  a  writer  of 
novels,  'Ring  in  the  New/  'No.  5,  John  Street/  and 
some  others.  He  is  a  man  of  the  type  that  grows  on 
the  press,  but  does  not  grow  so  plentifully  as  one  might 
wish. 

"There  was  a  clever  fellow  named  Bowles.  He  was  the 
Paris  correspondent  of  the  London  Standard.  He  ran  over 
only  to  take  an  occasional  look  at  Geneva.  I  do  not 
think  the  Standard  kept  a  man  there,  though  at  that  time 
it  was  a  first-rate  newspaper. 

"  The  New  York  Herald  had  three  men.  The  cleverest 
newspaper  man  probably  who  was  on  that  duty  was 
Macgahan  (Januarius  Macgahan)  who  subsequently 
made  a  campaign  with  the  Russian  column  that  went 
to  Khiva;  made  a  Carlist  campaign  in  Spain  for  the 
London  Times;  wrote  for  the  London  Daily  News  the 
effective  description  of  the  Bulgarian  atrocities  that 
were  preliminary  to  the  Russo-Turkish  War,  and  per- 
ished as  a  correspondent  in  that  war,  —  a  victim  of  bad 
system  in  newspaper  offices.  His  body  was  brought 
home  by  the  United  States,  and  was  buried  at  his  home 
in  Ohio.  Another  Herald  man  was  George  Sauer,  a  Ger- 


THE  AWARD  331 

man  and  a  naturalized  citizen,  notable  for  his  facility 
in  several  languages,  and  for  his  familiarity  with  the 
ways  and  the  wiles  of  the  half-diplomatic,  half-journal- 
istic world  that  was  in  evidence  at  that  time  in  the  little 
city.  I  was  the  third,  and  as  I  was  responsible  for  all 
the  Herald  correspondence  in  Europe  at  that  time,  I 
was  there  only  to  see  that  the  Herald  should  have  the 
best  possible  service."  * 

A  conspicuous  figure  among  the  fraternity  of 
writers  was  Ralph  Keeler,  a  true  Bohemian,  —  who 
had  once  been  a  clerk  in  the  post-office,  at  Toledo, 
Ohio,  —  and  so  knew  Mr.  Waite.  About  two  years 
before,  Keeler  had  suddenly  come  into  prominence 
by  reason  of  two  vagabondish  articles  of  his  that 
appeared  in  the  A tlantic  Monthly:  "  Three  Years  as 
a  Negro  Minstrel"  and  "A  Tour  of  Europe  for 
$181  in  Currency."  They  were  for  those  days  a 
startling  novelty.  He  was  now  "  doing  Geneva," 
I  believe,  for  Harper's  Magazine.  I  recall  him  as 
being  unconventional  to  a  degree.  Poor  fellow !  The 
next  year,  on  his  way  to  Cuba,  as  special  corre- 
spondent of  the  New  York  Tribune,  to  prepare  a 
series  of  articles  on  an  insurrection  that  was  making 
headway  in  that  lively  region,  Keeler  mysteriously 
disappeared.  It  was  believed  that  he  had  been 
murdered  on  the  steamer,  and  his  body  thrown 
overboard.  Mr.  William  Dean  Howells,  who  I  think 
discovered  him,  made  this  rising  young  writer  the 

1  MS.  Letter,  Hosmer  to  Hackett,  18  February,  1908. 


332  THE  GENEVA  TRIBUNAL 

subject  of  a  discriminating  eulogy  in  the  Atlantic, 
full  of  feeling.  The  world  of  literature  it  is  not  un- 
likely sustained  a  loss  in  his  tragic  death. 

Samuel  Arthur  Bent  of  Boston  (just  mentioned 
in  a  note)  was  one  of  the  editors  of  the  Swiss  Times, 
an  English  journal,  published  for  a  while  at  Geneva. 
Mr.  Bent  (Yale,  1861)  was  a  cultivated  gentleman, 
of  unusual  literary  acumen,  who  had  flirted  with 
the  " jealous  mistress,"  and  then  had  turned  his 
back  upon  her.  He  later  became  one  of  the  editors 
of  Galagnani's  Messenger,  at  Paris  —  but  at  last  he 
had  persuaded  himself  to  stay  on  the  right  side  of 
the  Atlantic  Ocean.  His  "  Familiar  Short  Sayings 
of  Great  Men  "  (Boston,  1882)  is  a  work  original  in 
conception  and  happily  executed  —  a  collection  of 
witty  or  otherwise  notable  remarks  in  brief  form, 
to  which  is  added  appropriate  explanation  or  com- 
ment, such  as  only  a  diligent  reader,  endowed  with 
discriminating  taste,  could  furnish.  The  Arbitra- 
tion was  a  large-sized  affair  for  a  local  newspaper 
to  deal  with,  but  I  remember  that  we  used  to  get 
quite  as  much  mystery  and  unintelligible  informa- 
tion out  of  the  columns  of  the  Swiss  Times  every 
day,  as  was  paraded  elsewhere  in  more  pretentious 
journals. 

Of  the  English  press  the  Times  had  upon  the 
ground  a  correspondent  of  experience  —  Frederick 
Hardman,  author  of  "The  Spanish  Campaign  in 
Morocco"  (1860),  and  other  similar  volumes.  Mr. 
Bent  says:  — 


THE  AWARD  333 

"He  was  a  very  quiet  and  gentlemanly  man,  high  on 
the  paper's  staff.  He  never  showed  himself  among  the 
other  newspaper  men  '  nosing '  for  information.  Yet 
the  Times  knew  better  than  the  rest  of  us  what  was 
going  on.  I  always  thought  he  was  supplied  with  such 
facts  as  they  cared  to  give  out  by  the  British  staff,  or 
counsel's  clerks." 

An  engaging  young  fellow,  whom  I  came  to  know 
well  (and  whom  everybody  liked)  was  Rashleigh 
Holt- White,  who  represented  the  Daily  News.  Ed- 
ucated at  Oriel,  he  was  bright,  refined,  and  scholarly. 
He  soon  got  upon  friendly  terms  with  all  the  Amer- 
ican party.  One  of  his  ancestors  was  a  near  relative 
(a  brother,  I  think)  of  dear  old  Gilbert  White  of 
Selborne;  and  one  liked  this  young  man,  too,  for 
that.  Had  he  lived,  he  might  have  attained  rank 
in  the  walks  of  literature,  for  the  despatches  he  sent 
to  his  journal  displayed  an  excellence  of  style  — • 
a  felicitous  touch.  Of  the  American  Agent,  White 
wrote  as  follows:  — 

"Those  who  have  read  the  United  States  Case  might 
be  inclined  to  fancy  that  Mr.  Davis  would  be  a  sharp, 
sarcastic  man  in  his  way  of  talking,  whereas  he  is  in  real- 
ity very  bland  and  affable  in  manner.  Any  one  who  saw 
him  walking  down  Broadway  would  certainly  take  him 
for  a  ' Britisher'  who  had  run  over  to  see  the  States, 
for  he  has  the  physique  and  dress  —  even  the  way  of 
talking  —  of  a  Yorkshireman,  rather  than  a  New  Eng- 
lander."  * 

1  London  Daily  News,  22  June,  1872. 


334  THE  GENEVA  TRIBUNAL 

At  home  during  the  summer  of  1872  our  news- 
paper men  had  their  hands  full.  There  was  a  cam- 
paign going  on  for  the  election  of  either  Grant  or 
Greeley  to  the  Presidency.  Yet  the  people,  particu- 
larly on  the  Atlantic  seaboard,  were  concerned  to 
hear  promptly  how  matters  were  getting  along  at 
Geneva.  Of  course,  all  sort  of  rumors  gained  circu- 
lation —  some  of  them  ridiculous.  Home  talent  had 
to  look  well  to  its  spurs.  The  reader  will  be  inter- 
ested, I  feel  sure,  hi  the  following  account  from  a 
newspaper  man  who  was  actively  engaged  in  Wash- 
ington at  that  stirring  period  in  this  special  line  of 
work:  — 

"At  the  time  of  the  Geneva  Arbitration,  the  New  York 
Herald  bureau  at  Washington  was  in  charge  of  George 
O.  Seilhamer,  of  Chambersburg,  Pennsylvania,  with 
Herbert  A.  Preston,  of  Boston,  as  his  assistant.  I  was 
a  special  assistant  employed  on  desk  work,  it  being  the 
practice  then  to  print  all  the  Washington  despatches 
together,  and  to  give  everything  put  on  the  wires  a  good 
literary  form. 

"From  the  time  that  the  indirect  claims  were  presented 
in  the  American  Case  till  they  were  set  aside  by  the  ac- 
tion of  the  Tribunal,  Preston  and  I  gave  the  Arbitration 
proceedings  our  chief  attention.  I  studied  everything 
that  appeared  in  print  about  the  indirect  claims,  and 
the  dispute  over  them,  whether  of  domestic  origin,  or 
cabled  over  from  abroad.  Preston  had  a  large  and  serv- 
iceable acquaintance  with  all  sorts  and  conditions  of 
men,  —  in  the  Cabinet,  in  Congress,  at  the  foreign  lega- 


THE  AWARD  335 

tions,  among  army  and  navy  officers,  who  went  about 
in  the  official  and  diplomatic  set  and  heard  everything 
that  was  going;  Seilhamer  had  a  special  access  to  three 
or  four  useful  men  that  no  other  correspondent  could 
reach;  and  quite  a  number  of  prominent  Senators  and 
Representatives  were  habitual  visitors  to  the  bureau. 
Altogether,  not  less  than  from  fifteen  to  twenty  men  of 
political,  official,  and  social  importance,  in  addition  to 
four  or  five  ladies  in  society,  were  doing  all  they  could 
for  us,  out  of  good- will  for  the  bureau  and  its  staff;  and 
we  also  got  some  useful  information  from  regular  and 
amateur  journalists,  who  knew  the  bureau  to  be  a  good 
paymaster  for  all  exclusive  matter  that  it  could  use. 

"The  result  of  our  internal  and  external  organization 
and  efforts  was  that  the  Washington  despatches  to  the 
Herald  were  notably  full  and  accurate  as  to  the  secret 
doings  of  each  day  that  the  dispute  lasted,  and  quite 
successful  in  their  forecasts. 

"  When  the  excitement  was  over,  Secretary  Fish  as- 
serted that  there  had  been  an  obvious  leakage  from  the 
Washington  office  of  the  Western  Union  Telegraph 
Company  into  the  Washington  bureau  of  the  Herald; 
and  clippings  of  some  of  our  despatches  were  relied  on 
as  proofs  that  we  must  have  been  informed  of  the  con- 
tents of  cipher  cablegrams  passing  to  and  fro  between 
Washington  and  London,  and  Washington  and  Geneva. 
That  we  were  informed  of  the  substance  of  some  of  these 
cablegrams  is  true,  but  the  information  came  from  more 
highly-placed  sources  than  could  be  found  in  a  telegraph 
office,  and  had  no  other  price  than  good-will. 

"  No  leakage  was  found,  but  as  the  Secretary  of  State 
was  unappeasable,  and  the  New  York  management  of 


336  THE  GENEVA  TRIBUNAL 

the  telegraph  company  put  pressure  upon  the  home 
office  of  the  Herald  to  come  to  its  relief,  and  as  some  of 
the  important  people  at  Washington  who  had  served 
us  were  growing  nervous,  an  arrangement  was  made  by 
which  a  scapegoat  was  found  in  the  person  of  the  tele- 
graph operator  at  Washington,  who  was  best  open  to 
suspicion,  and  his  salary  was  paid  by  the  Herald  till  he 
could  return  to  the  service  of  the  telegraph  company 
without  fear  of  renewed  trouble  from  Secretary  Fish."  l 

The  glorious  "  Fourth  "  was  coming  along  as  usual, 
and  certain  ardent  patriots  among  the  American 
newspaper  men  resolved  that  it  should  be  cele- 
brated this  time  with  special  fervor.  Accordingly 
plans  were  set  on  foot,  and  invitations  to  "a  grand 
banquet"  sent  to  all  the  officials  of  the  Tribunal. 
Unluckily  for  the  success  of  that  part  of  the  pro- 
gramme, the  Arbitrators  had  adjourned  the  Confer- 
ence under  such  terms  as  permitted  everybody  to 
get  away  from  Geneva  and  not  return  until  after 
the  fourth  of  July.  But  Mr.  Adams  and  General 
Gushing  had  remained,  and  they  signified  their  pur- 
pose to  be  present.  Following  the  rather  unguarded 
recommendation  of  the  distinguished  grandsire  of 
the  former,  arrangements  were  perfected  for  firing 
a  salute  at  sunrise  on  the  bank  of  the  Lake,  near 
the  Hotel  Beau  Rivage,  the  American  headquarters. 
The  guns  were  fired,  one  hundred  in  all.  So  the 
day  was  begun  in  real  old-fashioned  style.  It  was 
to.  end  with  a  ball  and  fireworks.  A 

1  MS.  Letter,  Charles  F.  Benjamin  to  Mr.  Hackett,  5  Feb.  1907. 


THE  AWARD  337 

Horace  Rublee,  our  Minister  to  Switzerland,  pre- 
sided at  the  banquet,  which  was  largely  attended. 
Mr.  Bent,  of  the  Swiss  Times,  acted  as  toastmaster. 
Mr.  *Adams  responded  happily  to  the  toast,  "The 
day  we  celebrate."  General  Gushing  was  called 
upon  to  speak  to  the  toast,  "Our  Country."  Says 
Mr.  Bent  (writing  from  memory,  after  the  lapse 
of  more  than  thirty-five  years) :  —  . 

"The  speech  was  made  by  General  Gushing.  He  said 
he  had  been  studying  the  Swiss  Constitution;  and  he 
aroused  the  audience,  of  a  hundred  or  more,  to  great 
enthusiasm,  in  his  eulogy  of  the  Confederation.  I  never 
heard  a  more  eloquent  or  stirring  after-dinner  speech." 
After  Gushing  had  been  made  Minister  to  Spain  (1874), 
"he  called  on  me  at  Paris,"  continues  Mr.  Bent,  "and 
invited  me  to  a  dinner,  at  which  Washburne,  General 
Sickles,  and  a  few  others  were  present.  When  I  men- 
tioned the  dinner  at  Geneva,  his  comment  was,  'The 
wines  were  good/  "  1 

Gushing  could  talk  convincingly  about  Swiss 
political  institutions,  for  he  had  thoroughly  ex- 
plored the  subject.  He  knew  all  that  was  to  be 
learned  of  it  from  books.  Moreover,  he  had  at  his 
fingers'  ends  many  details  of  the  fortunes  of  Switzer- 
land and  her  people.  As  soon  as  he  had  settled  down 
for  a  stay  at  Geneva,  he  got  together,  either  by 
purchase,  or  by  the  use  of  libraries,  all  sorts  of  works 
dealing  with  the  history  and  traditions  of  that  local- 
ity. In  a  sfeort  time  probably  no  antiquarian  there 

i  MS.  Letter,  1907. 


338  THE  GENEVA  TRIBUNAL 

could  have  surpassed  him  in  a  familiarity  with  the 
details  of  what  had  taken  place  in  that  neighbor- 
hood deserving  of  remembrance. 

I  retain  a  pleasing  recollection  of  the  veteran 
soldier  General  Dufour's  calling  early  one  afternoon 
upon  General  Gushing.  The  two  conversed  in  French 
until  a  very  late  hour.  I  doubt  not  that  Cushing's 
intimate  acquaintance  with  local  events  of  note 
contributed  its  full  share  to  induce  the  Swiss  gen- 
eral to  prolong  his  stay.  I  may  add  here  (even  if  it 
be  in  some  sense  a  repetition)  that  Gushing's  grasp 
of  the  political  history  of  Europe,  his  accurate  know- 
ledge of  leaders,  and  even  of  men  of  the  second  rank, 
in  the  various  states  and  kingdoms,  was  simply 
marvellous.  Moreover,  he  seldom  let  a  day  go  by 
that  he  did  not  add  something  to  his  stock  of  in- 
formation. 

That  particular  summer  might  indeed  have  been 
termed  a  red-letter  season  for  Geneva.  On  Sunday, 
25th  August,  the  town  was  overrun  with  people 
attracted  by  a  great  musical  fete.  The  evening  was 
brilliant  with  illuminations  and  fireworks.  A  dis- 
play of  bunting  brightened  the  prospect  in  every 
direction,  the  flag  of  the  Swiss  Republic,  the  Union 
Jack,  and  the  Stars  and  Stripes  being  the  most  con- 
spicuous. It  was  thought  that  never  before  in  her 
history  had  Geneva  put  off  so  much  of  her  staidness. 
To  me  it  seemed  almost  as  if  I  were  undergoing  a 
good  deal  of  the  sensation  of  a  Fourth  of  July  ob- 
servance, after  all.  A  grand  ball  came  off  at  the 


THE  AWARD  339 

Palais  Electoral  on  the  following  night;  and  while 
it  could  not  be  said  that  there  was  any  particular 
principle  of  international  law  at  stake,  some  of  us 
thought  it  our  duty  to  attend. 

No  form  of  hospitality  could  have  been  more  gen- 
uine or  more  acceptable  than  that  extended  by  the 
citizens  of  Geneva  to  the  eminent  men  who  for  a 
brief  season  were  sojourning  there.  Geneva  did  not 
obtrude  her  attentions.  She  let  these  strangers  at 
once  feel  themselves  at  home.  In  due  time  (7  Sep- 
tember) the  officials  of  the  Canton  invited  the 
Arbitrators,  the  Agents,  the  Counsel  and  their  sec- 
retaries to  a  handsomely  appointed  dinner  at  the 
Hotel  de  la  Paix.  The  President  of  the  Conseil 
d'Etat,  M.  Carteret,  presided.  Everybody  attended 
with  the  exception  of  Lord  Chief  Justice  Cockburn. 
Count  Sclopis  delivered  an  excellent  speech,  full  of 
kindly  sentiment.  He  spoke  eloquently  of  Cavour 
(in  graceful  terms  reminding  the  company  of  Ca- 
vour's  family  connection  with  Geneva),  and  voiced 
the  gratitude  of  all  the  guests  for  the  hospitable 
treatment  that  they  were  enjoying  in  that  beautiful 
city.  I  remember  that  I  sat  between  two  stout  Swiss 
gentlemen,  who  knew  no  English.  I  eked  out  my 
scanty  store  of  French  as  well  as  I  could.  There  was 
such  hearty  good  feeling  in  our  neighborhood  that 
all  of  us  were  impressed  with  the  idea  that  we  were 
having  a  really  fine  time  of  it. 

"I  went  with  Sir  Roundell  to  a  dinner  given  by  the 
Geneva  Council  of  State,  last  night.  He  thought  we 


340  THE  GENEVA  TRIBUNAL 

could  not  refuse.  I  have  managed  by  means  of  Davis, 
who  is  nervous  of  speaking  French  in  public,  to  get  the 
speech-making  cut  down  to  a  speech  to  Sclopis,  and  a 
speech  (which  he  carries  about  ready  written  with  him) 
from  Sclopis,  at  both  the  public  entertainments  we  have 
been  to.  I  hope  to  be  equally  successful  at  Berne,  where 
I  go  (as  the  Chief  Justice  won't)  on  Thursday."  l 

Just  before  the  final  adjournment  was  to  occur, 
the  Federal  Government  (11  September)  extended 
their  hospitalities  to  the  distinguished  visitors  who 
had  been  engaged  within  the  borders  of  the  Swiss 
Republic  in  the  work  of  composing  the  differences 
between  two  great  nations.  A  special  train  took  the 
Arbitrators  (except  Sir  Alexander  Cockburn),  the 
Agents,  the  American  Counsel  and  secretaries  to 
Berne.  Lord  Tenterden  was  the  only  Englishman 
of  the  party,  save  that  one  or  more  of  the  young 
secretaries  may  have  accompanied  him.2  Here  they 
were  received,  at  five  o'clock  in  the  afternoon,  by 
the  President  of  the  Swiss  Confederation,  in  the 
Chamber  of  the  Council  of  State.  The  party  were 
taken,  the  next  day,  to  Interlaken,  and  upon  their 
return  to  the  Capital  were  guests  at  a  State  dinner. 
The  President  of  the  Confederation  presided,  and 
all  the  members  of  the  diplomatic  corps  were  pre- 
sent as  guests.  The  Chief  Executive  (as  the  report 
shows)  did  the  honors  of  the  occasion  with  a  simple 

1  Tenterden  to  Granville,  8  September,  1872.  Fitzmaurice:  Life 
of  Granville,  vol.  ii,  p.  106. 

~*  It  so  happened  that  two  days  previously  I  had  left  Geneva, 
the  labors  of  the  Counsel  having  ended. 


THE  AWARD  341 

dignity,  and  with  a  genuine  cordiality,  that  were 
particularly  grateful  to  the  American  party. 

The  14th  of  September  was  a  beautiful  day. 
For  the  first  time  the  doors  had  been  thrown  open 
to  other  persons  than  those  directly  and  officially 
connected  with  the  Arbitration.  A  goodly  company 
(including  several  ladies)  had  gathered  at  the  Hotel 
de  Ville  before  half-past  twelve  o'clock,  the  hour  for 
the  Tribunal  to  convene.  The  Cantonal  Govern- 
ment of  Geneva  attended  in  a  body,  as  the  guests 
of  the  Tribunal.  The  Countess  Sclopis,  the  Vis- 
countess d'ltajuba,  Lady  Laura  Palmer,  Mrs.  Ban- 
croft Davis,  and  Mrs.  Evarts,  with  her  daughters, 
were  present.  The  representatives  of  the  press  were 
also  there;  as  well  as  a  few  English  and  American 
visitors. 

For  some  unexplained  reason  the  British  Arbi- 
trator and  Lord  Tenterden  did  not  make  their 
appearance  until  an  hour  after  the  appointed  time. 

The  proceedings  were  opened,  a^  usual,  by  the 
reading  and  approving  of  the  Protocol  of  the  last 
preceding  Conference.  Then,  by  direction  of  the 
President,  the  Secretary  of  the  Tribunal,  Mr.  Fa- 
vrot,  read  in  a  firm  voice  the  official  copy  of  the 
decision  and  award  in  English,  amid  the  profound 
silence  of  the  audience.  The  reading  of  the  French 
text  was  dispensed  with.  Four  of  the  Arbitrators 
(Mr.  Adams,  Count  Sclopis,  Mr.  Staempfli,  and  Vis- 
count d'ltajuba)  then  subscribed  their  names  to 
duplicate  originals  of  the  decision  and  award.  The 


342  THE  GENEVA  TRIBUNAL 

British  Arbitrator  held  aloof,  and  permitted  the 
document  to  go  upon  record  without  his  signature. 
It  was  an  impressive  scene. 

A  journalist  who  was  present  has  said  that  the 
Lord  Chief  Justice  was  "the  dramatic  member  of 
the  Tribunal."  He  certainly  was  the  chief  figure 
in  the  foreground  of  the  proceedings  upon  this  mem- 
orable day. 

"Cockburn  was  a  handsome  man;  stately,  a  haughty, 
clear-limned  face,  character  deeply  written.  He  was  very 
angry.  ...  I  stood  beside  his  chair,  and  remember  the 
magnificent  scowl  as  he  glared  over  the  assemblage." 1 

At  this  point  Sir  Alexander  Cockburn  arose,  and 
in  a  clear,  musical  voice,  said  that  he  held  in  his 
hand  a  paper,  setting  forth  his  reasons  for  not  join- 
ing his  colleagues  in  assenting  to  the  award.  With 
that  he  produced  a  bulky  collection  of  sheets,  partly 
in  print  and  partly  in  manuscript,  and  handing  it 
to  the  Secretary,  expressed  a  wish  that  the  "Opin- 
ion" be  annexed  to  the  Protocol.  It  did  not  appear 

1  John  Russell  Young:  Men  and  Memories  (1901),  p.  361.  Young 
was  a  facile  writer,  skilled  in  that  form  of  embellishment  known 
as  the  pen-and-ink  sketch  of  public  characters.  He  thus  outlines 
the  American  group:  "Caleb  Gushing,  with  that  dark,  gypsy 
gleam,  and  a  flash  of  triumph  in  his  luminous  eyes.  Waite,  a  modest 
lawyer  from  Ohio,  little  dreaming  of  the  supreme  honor  that  was 
BO  soon  to  come  to  him.  .  .  .  Evarts,  with  his  medieval  features, 
calmly  observant.  This  was  our  company,  governed,  so  it  appeared, 
by  Bancroft  Davis,  our  Agent,  to  whom,  if  there  were  personal 
honor  in  a  national  triumph,  more  than  to  any  one  in  that  company 
this  triumph  belonged." 


THE  AWARD  343 

that  any  one  of  his  colleagues  had  seen  Sir  Alex- 
ander's dissenting  opinion.  But  it  was  no  time  for 
technicalities;  and  Count  Sclopis  politely  replied 
that  the  desire  of  the  Arbitrator  from  Great  Britain 
should  be  gratified. 

The  necessary  steps  were  then  taken  to  complete 
the  record  of  this,  the  thirty-second  and  last,  Con- 
ference. It  was  decided  to  sign  a  third  copy  to  be 
deposited  in  the  archives  of  the  Conseil  d'Etat, 
in  the  Hotel  de  Ville,  Geneva.  The  President  then, 
not  without  signs  of  real  feeling,  proceeded  to  address 
the  Tribunal  as  follows: — 

"Gentlemen,  and  honored  colleagues: — 

"  Our  work  is  done.  The  Court  of  Arbitration  has  lived 
its  life.  During  its  existence  the  best  relations  have 
constantly  been  maintained  among  us.  In  all  that  con- 
cerns myself,  I  cannot  sufficiently  express  to  you,  gentle- 
men, the  gratitude  I  feel  in  having  been  supported  by 
your  indulgence  and  intelligence  in  the  exercise  of  the 
delicate  functions  which  you  were  pleased  to  confer  upon 
me. 

"We  have  been  fortunate  in  beholding  the  complete 
success  obtained  by  the  first  part  of  our  work  regarded 
solely  from  an  official  point  of  view.  No  more  flattering 
eulogium  could  have  been  conferred  on  us  than  that 
which  has  been  expressed  by  the  highest  authorities 
of  the  two  countries  interested.  They  recognize  that  we 
have  acted  as  the  devoted  friends  of  both  powers.  Such 
has  been  in  fact  the  real  and  prolonged  sentiment  which 
animated  us  in  the  second  part  of  our  work,  confined,  as 


344          THE  GENEVA  TRIBUNAL 

it  has  been,  entirely  within  the  limits  of  the  judicial  au- 
thority conferred  upon  us  by  the  Treaty  of  Washington. 

"We  have  employed  a  scrupulous  care  and  absolute  im- 
partiality in  order  not  to  deviate  for  an  instant  from  the 
rules  of  justice  and  equity.  The  cooperation  of  the  em- 
inent jurists  who  assisted  the  two  Governments,  as  well 
as  of  the  Agents  who  represented  them,  has  powerfully 
aided  us  in  this  work;  and  we  are  happy  to  be  able  to  offer 
them  all  our  sincere  thanks.  We  have  the  testimony  of 
our  conscience  that  we  have  not  failed  in  our  duty.  We 
express  the  fervent  prayer  that  God  will  inspire  all  Gov- 
ernments with  the  constant  purpose  of  maintaining  that 
which  is  the  invariable  desire  of  all  civilized  people,  that 
which  is,  in  the  order  of  the  moral  as  well  as  the  material 
interests  of  society,  the  highest  of  all  good,  —  peace. 

"Our  last  word  shall  be  for  Geneva,  this  noble  and  hos- 
pitable city,  which  has  received  us  so  well;  and  in  bidding 
it  farewell  we  can  assure  it  that  its  remembrance  will 
never  be  effaced  from  our  minds.  The  Tribunal  thought 
that  it  might  be  agreeable  to  the  Government  of  the 
Republic  to  possess  among  its  archives  a  testimony  of 
what  has  on  this  occasion  taken  place  in  the  Hotel  de 
Ville.  It  has,  therefore,  commanded  a  copy  of  the  judg- 
ment, signed  by  all  the  members,  to  be  deposited  in  the 
archives  of  the  Conseil  d'fetat.  Once  more  we  take  leave 
of  the  city  of  Geneva.  We  wish  it  all  the  happiness  that 
it  merits." 1 

Amid  the  hearty  applause  which  greeted  the  close 
of  the  address,  the  President  declared  the  labors  of 
the  Arbitrators  at  an  end,  and  the  Tribunal  to  be 

1  London  Daily  News,  15  September,  1872. 


THE  AWARD  347y/ 

dissolved.  As  Count  Sclopis  spoke  these  last  t*d,  Sir 
the  firing  of  a  national  salute  began  near  by,  ordered 
by  the  Cantonal  Government  of  Geneva.  Tfee 
Swiss  artillerymen  held  aloft  the  flags  of  Geneva 
and  Switzerland,  displayed  between  the  flags  of 
the  United  States  and  of  England.1 

To  borrow  the  language  of  Mr.  Cushing:  "It  is 
impossible  that  any  one  of  the  persons  present 
should  ever  lose  the  impression  of  the  moral  grand- 
eur of  the  scene."  The  occasion  may  repeat  itself  ; 
but  down  to  that  time,  no  such  great  international 
victory  of  peace  over  war  (for  that  was  its  signi- 
ficance) had  ever  been  witnessed.  The  writer  just 
quoted  fitly  alludes  to  "  the  emotion  that  was  visi- 
ble on  almost  every  countenance."  As  the  company 
broke  up,  they  exchanged  leave-takings  and  there 
was  a  general  rejoicing. 

It  is  with  unfeigned  reluctance  that  I  quote  fur- 
ther from  Mr.  Cushing;  but  the  incident  about  to 
be  related  forms  an  important  part  of  the  history 
of  the  Tribunal;  and  it  ought  not  to  be  omitted:  — 

"To  the  universal  expression  of  mutual  courtesy  and 
reciprocal  good-will  there  was  but  one  exception,  and  that 
exception  too  conspicuous  to  pass  without  notice. 

"The  instant  that  Count  Sclopis  closed,  and  before  the 
sound  of  his  last  words  had  died  on  the  ear,  Sir  Alexan- 
der Cockburn  snatched  up  his  hat,  and,  without  par- 

1  MS.  Letter,  Davis  to  Fish,  14  September,  1872,  Archives,  De- 
partment of  State;  Treaty  of  Washington,  pp.  126-128;  London 
newspapers. 


344  HE  GENEVA  TRIBUNAL 

it  ha$7  .g  in  the  leave-takings  around  him,  without  a 
the"    jr  sign  of  courteous  recognition  for  any  of  his  col- 
fffvies,  rushed  to  the  door,  and  disappeared,  in  the 
,    inner  of  a  criminal  escaping  from  the  dock,  rather  than 
i  a  judge  separating,  and  that  forever,  from  his  col- 
eagues  of  the  Bench.    It  was  one  of  those  acts  of  dis- 
courtesy which  shock  so  much  when  they  occur  that  we 
feel  relieved  by  the  disappearance  of  the  perpetrator." 1 

What  would  be  the  general  finding  had  been 
for  some  little  while  a  foregone  conclusion,  so  that 
neither  the  British  Agent  nor  Counsel  could  have 
had  ground  for  surprise  or  disappointment.  Lord 
Tenterden,  whom  all  respected,  must  at  least  have 
felt  the  satisfaction  of  having  done  his  whole  duty. 
Sir  Roundell  Palmer  had  suffered  extremely  from 
gout,  and  some  of  his  work  had  been  performed  at 
the  cost  of  acute  physical  pain.  He,  too,  could 
cherish  the  belief  that  the  cause  of  his  country  had 
been  loyally  and  ably  maintained. 

One  of  the  younger  men  among  the  newspaper 
writers  who  had  witnessed  the  curtain  fall  upon  the 
drama,  though  perhaps  drawing  somewhat  upon  his 
imagination,  gave  to  the  public  his  impressions  as 
follows:  — 

"England  will  pay  the  sum  with  as  good  a  grace  as 
possible,  but  I  thought  I  saw  the  sense  of  a  national 

1  The  Treaty  of  Washington,  p.  128.  To  tell  the  truth,  there  were 
certain  other  instances  during  the  stay  of  the  Lord  Chief  Justice 
at  Geneva,  where  a  slight  attention  on  his  part  to  social  obligations 
might  have  left  an  altogether  different  impression  of  him  from 
that  which  the  American  party  was  compelled  to  bring  away. 


THE  AWARD  347 

shame,  when,  after  the  judgment  had  been  signed,  Sir 
Roundell  Palmer  gathered  up  his  papers,  wiped  his  flushed 
brow,  and  with  downcast  eyes  walked  gravely  out  of  the 
room." l 

The  losing  party  accepted  the  result  after  a  manly 
fashion.  Sir  RoundelPs  own  words  are:  "We  were 
all  glad  when  this  great  International  Arbitration 
came  to  an  end." 2 

The  Times  voiced  the  sentiment  of  the  great 
majority  of  the  English  people  when  it  said  of  the 
dispute  that  there  is  "an  immeasurable  feeling  of 
relief  that  it  is  permanently  settled." 3  The  next  day 
the  Times  administered  a  balm  by  praising  the 
British  Arbitrator,  at  the  expense  of  his  colleagues. 
Then,  after  a  little  more  animadversion  (readily 
to  be  pardoned),  it  sensibly  concluded:  "For  the 
immediate  object  in  view  we  simply  wanted  the 
judgment  of  five  men  of  sense  and  honor;  we  have 
obtained  it,  and  we  cheerfully  abide  by  it." 

The  text  of  the  Award  is  as  follows:  — 

"The  Tribunal  making  use  of  the  authority  conferred 
upon  it  by  Article  vn  of  the  said  Treaty,  by  a  majority 
of  four  voices  to  one,  awards  to  the  United  States  a  sum 
of  $15,500,000,  in  gold,  as  the  indemnity  to  be  paid  by 
Great  Britain  to  the  United  States,  for  the  satisfaction 
of  all  the  claims  referred  to  the  consideration  of  the  Tri- 
bunal, conformably  to  the  provisions  contained  in  Arti- 
cle vn  of  the  aforesaid  Treaty."  4 

1  Herbert  Tuttle,  in  Boston  Daily  Advertiser,  1  October,  1872. 
*  Memorials^  vol.  i,  p.  274.        »  London  Times,  17  Sept.  1872. 
4  Gen.  Arb.,  vol.  iv,  p.  53. 


348          THE  GENEVA  TRIBUNAL 

The  Tribunal  decided  that  — 

"  First:  The  '  due  diligence '  referred  to  [in  the  Three 
Rules]  ought  to  be  exercised  by  neutral  governments  in 
exact  proportion  to  the  risks  to  which  either  of  the  bel- 
ligerents may  be  exposed,  from  a  failure  to  fulfil  the 
obligations  of  neutrality  on  their  part; 

"Second:  The  effects  of  a  violation  of  neutrality  com- 
mitted by  means  of  the  construction,  equipment,  and 
armament  of  a  vessel  are  not  done  away  with  by  any 
commission  which  the  Government  of  the  belligerent 
Power,  benefited  by  the  violation  of  neutrality,  may 
afterwards  have  granted  to  that  vessel;  and  the  ultimate 
step,  by  which  the  offence  is  completed,  cannot  be  ad- 
missible as  a  ground  for  the  absolution  of  the  offender, 
nor  can  the  consummation  of  his  fraud  become  the  means 
of  establishing  his  innocence; 

"  Third:  The  privilege  of  exterritoriality  accorded  to 
vessels  of  war  has  been  admitted  into  the  law  of  nations, 
not  as  an  absolute  right,  but  solely  as  a  proceeding 
founded  on  the  principle  of  courtesy  and  mutual  defer- 
ence between  different  nations,  and  therefore  can  never  be 
appealed  to  for  the  protection  of  acts  done  in  violation 
of  neutrality."  l 

Upon  the  subject  of  the  supply  of  coal  the  Tri- 
bunal were  of  opinion  that  special  circumstances 
of  time,  of  persons,  or  of  place  might  combine 
to  render  the  supply  inconsistent  with  the  second 
rule  of  the  Treaty,  namely,  that  a  neutral  Govern- 
ment is  bound  not  to  permit  or  suffer  either  belli- 
gerent to  make  use  of  its  ports  or  waters  as  the  base 

1  Gen.  Arb.,  vol.  iv,  p.  50. 


THE  AWARD  349 

of  naval  operations  against  the  other,  or  for  the  pur- 
pose of  the  renewal  or  augmentation  of  military 
supplies  or  arms,  or  the  recruitment  of  men. 

Viscount  d'ltajuba  stated  that,  while  he  signed 
the  decision,  he  was  of  opinion  that  every  Govern- 
ment is  free  to  furnish  to  the  belligerents  more  or 
less  of  that  article.  It  is  hardly  needful  to  state  that 
Sir  Alexander  Cockburn  had  reached  a  like  con- 
clusion. But  the  majority  of  the  Arbitrators  would 
seem  to  have  had  the  better  side  of  the  argument. 
Count  Sclopis  points  out  that  the  Florida  selected 
for  a  field  of  operations  the  stretch  of  sea  between 
the  Bahama  Archipelago  and  Bermuda,  to  cruise 
there  at  her  ease,  while  the  Shenandoah  chose  Mel- 
bourne and  Hobson's  Bay,  for  the  purpose  of  going 
immediately  to  the  Arctic  seas,  to  attack  whaling- 
vessels.  He  justly  regards  furnishing  a  supply  of 
coal  in  quantities  sufficient  for  such  purposes  as  an 
infringement  of  the  second  rule.1  Sir  Alexander 
argues  ingeniously  that  machinery  and  coal  have 
taken  in  a  great  measure  the  place  of  masts  and 
sails,  and  consequently  that  the  same  principle 
must  apply  to  them.2  On  the  other  hand,  Mr. 
Staempfli,  after  his  blunt  fashion,  has  this  to  say  of 
the  coal  taken  at  Melbourne  by  the  Shenandoah:  — 

"The  supply  of  coal  was  not,  therefore,  a  necessary 
condition  of  the  neutral  asylum;  and  in  supplying  her 
with  so  large  a  quantity  of  coal,  the  capacity  of  the  ship 

1  Gen.  Arb.,  vol.  iv,  p.  74.  8  Ibid.,  p.  425. 


350  THE  GENEVA  TRIBUNAL 

for  making  war  was  increased,  just  as  much  as  by  the 
recruitment  of  her  crew  which  took  place." 1 

A  graceful  incident  that  followed  close  upon  the 
final  adjournment  was  the  addressing  by  Bancroft 
Davis  of  a  personal  letter  of  thanks  to  each  of  the 
neutral  Arbitrators:  — 

Unofficial.  GENEVA,  September  17,  1872. 

DEAR  SIR: — 

I  cannot  leave  Geneva  without  expressing  my  deep 
sense  of  the  value  of  the  services  which  you  and  your 
colleagues  from  the  neutral  Powers  have  rendered  to  the 
two  great  nations  which  have  appeared  before  you. 

Any  official  acknowledgment  which  my  Government 
may  think  proper  to  make,  may  reach  you  through  other 
channels.  But  I  cannot  neglect  to  say  that  the  learning, 
the  intelligence,  the  skill,  the  patient  labor,  the  even 
temper,  and  the  good  sense,  and  above  all  the  absolute 
impartiality,  with  which  the  Arbitrators  appointed  by 
the  neutral  Powers  have  performed  their  arduous  work, 
has  deeply  impressed  every  American  gentleman  con- 
nected with  the  Arbitration. 

Wishing  you  a  happy  return  to  your  home,  and  the 
pleasant  and  tranquil  rest  which  must  be  grateful  after 
such  severe  labor,  I  have  the  honor  to  be, 

With  the  most  respectful  regards, 

Your  faithful  servant, 

J.  C.  B.  DAVIS. 

It  is  too  much  to  expect  that  the  race  in  England 
will  soon  die  out  of  those  who  are  not  pleased  with 
the  verdict  rendered  at  Geneva.  A  writer  in  the 

1  Gen.  Arb.,  vol.  iv,  p.  134. 


THE  AWARD  351 

Quarterly  Review  for  April,  1906,  of  an  article  en- 
titled "The  Old  and  the  New  Whigs,"  who  has 
scant  praise  to  bestow  upon  the  Gladstone  Admin- 
istration, remarks  as  follows:  — 

"The  terms  of  the  settlement  of  the  Alabama  Claims 
at  the  Geneva  Convention  of  1872  must  always  remain 
a  question  for  dispute,  because  the  full  information  on 
either  side  will  never  be  published.  Foreign  politics  must 
always  remain  an  imperfect  subject  for  history,  since 
Secretaries,  in  all  countries,  l  still  keep  something  to 
themselves.'  Mr.  Paul  ['  A  History  of  Modern  England ' 
by  Herbert  Paul,  1904-5]  thinks  that  the  final  settlement 
and  the  example  it  gave  were  (iii,  294)  l  achievements 
not  estimable  in  gold  or  silver/  Others  will  still  be  of 
opinion  that  the  attempt  of  the  Americans  to  estimate 
their  grievances  in  amounts  of  gold  and  silver  that  the 
lamp  of  Aladdin  could  not  have  procured,  and  the  final 
award  of  a  sum  for  the  full  amount  of  which,  to  this  day, 
no  honest  claimants  have  been  found,  were  not  conclu- 
sive proofs  of  the  merits  of  international  arbitration" 
(p.  323). 

As  for  the  merits  of  arbitration  compared  with 
the  advantages  of  declaring  war,  it  will  hardly  be 
maintained  that  the  former  mode  of  settling  a  grave 
dispute  between  two  high-spirited  nations  can  be 
depended  upon  to  yield  thorough  satisfaction  and 
peace  of  mind  to  the  losing  party.  We  have  quoted 
from  the  Quarterly  in  order  that  we  might  call  at- 
tention to  the  harm  likely  to  ensue  from  instilling 
into  the  minds  of  readers  of  the  present  generation 


352  THE  GENEVA  TRIBUNAL 

a  suspicion  that  there  had  been  something  unfair 
or  dishonest*in  the  conduct  of  the  representatives  of 
the  United  States,  either  in  obtaining  the  award 
or  in  distributing  its  proceeds. 

That  the  writer  himself,  in  the  warmth  of  his 
criticism  of  Mr.  Gladstone  and  of  Lord  Granville 
scarcely  realizes,  when  he  uses  the  expression  "hon- 
est claimants/7  the  force  of  what  this  sinister  term 
may  signify,  we  are  quite  willing  to  believe.  "Full 
information"  as  to  "the  terms  of  the  settlement  of 
the  Alabama  Claims  at  the  Geneva  Convention 
of  1872"  is,  however,  not  so  difficult  to  obtain  as 
he  has  imagined. 

Were  our  critic  to  possess  himself  of  all  the  facts 
bearing  upon  the  amount  of  the  award,  he  would 
ascertain  that  the  sum  named  did  not  reach  the 
full  measure  of  the  direct  damage  wrought  by  the 
cruisers  for  whose  presence  on  the  high  seas  Great 
Britain  had  been  held  liable.  Nor  is  this  surprising. 
The  English  and  American  rule  of  damages  as  ap- 
plied in  courts  of  law,  it  must  be  remembered,  does 
not  assume  to  afford  to  the  injured  party  complete 
compensation  for  an  injury  sustained. 

By  the  seventh  article  of  the  Treaty  of  Washing- 
ton, the  Tribunal  was  empowered,  should  it  think 
proper,  to  award  a  sum  in  gross  to  be  paid  for  all 
the  claims  referred  to  it.  The  Government  of  the 
United  States  received  fifteen  million  and  a  half 
dollars,  not  as  money  to  be  held  in  trust  for  indi- 
vidual losers,  but  as  a  round  sum  in  payment  of  a 


THE  AWARD  353 

national  claim.  It  became,  therefore,  the  right 
of  the  United  States  to  do  with  this  fund  just  as 
it  should  see  fit.  In  saying  this  we  are  not  to  be 
understood  as  contending  that  moral  considerations 
were  to  be  held  as  of  no  account.  We  mean  that 
the  fund  did  not  bear  an  impress  of  money  that  had 
been  paid  over  for  the  benefit  of  any  particular 
class  of  persons  of  the  United  States.  As  to  the 
character  of  money  so  received,  English  and  Amer- 
ican courts  agree. 

Distribution  by  Act  of  Congress  was  made  only 
after  prolonged  deliberation  where  opportunity  had 
been  afforded  to  various  classes  of  claimants  to 
appear  and  be  heard.  The  Act  creating  the  Court 
of  Commissioners  of  Alabama  Claims  allowed  four 
per  cent  interest.  Had  six  per  cent,  the  usual  rate, 
been  allowed,  claimantg"~even  then  would  not  have 
recovered  the  full  amount  of  their  losses.  This  is 
observed  without  taking  into  account  the  fact 
that  claimants  were  compelled  to  employ  and  pay 
counsel,  to  say  nothing  of  the  value  of  their  own 
time  and  labor  expended  in  obtaining  and  present- 
ing proof  of  their  losses. 

Prolonged  discussion  took  place  before  the  Com- 
mittees of  Congress,  and  various  arguments  were 
brought  forward  to  support  the  theories  of  the  sev- 
eral classes  of  claimants  who  conceived  themselves 
entitled  to  share  in  the  fund.  Congress  provided 
at  first  for  the  hearing  and  adjudicating  of  claims 
growing  out  of  the  acts  of  those  cruisers  for  whose 


354  THE  GENEVA  TRIBUNAL 

career  Great  Britain  had  been  found  liable.  They 
were  termed  "inculpated  cruisers."  Partly  by  cut- 
ting down  the  rate  of  interest,  and  partly  because 
of  the  inherent  difficulty  of  proving  the  amount 
of  loss  in  the  respective  claims,  there  remained  a 
portion  of  the  fund  for  further  distribution.  A  later 
Act  of  Congress  provided  that  claims  might  be 
prosecuted  for  damages  on  the  high  seas  inflicted 
by  the  other  Confederate  cruisers, —  termed  "  ex- 
culpated," and  for  the  application  of  any  remainder, 
so  far  as  it  would  go,  to  war  premium  claims.  This 
last-mentioned  class  of  claimants  recovered  only  to 
the  extent  of  about  thirty-seven  per  cent  of  loss. 

As  to  whether  or  not  a  rightful  disposition  of  the 
Geneva  Award  money  has  been  effected,  we  feel  as- 
sured that  no  unprejudiced  person,  who  has  learned 
precisely  how  the  fund  originated,  and  who  has  con- 
sulted the  debates  in  Congress,  as  well  as  the  decis- 
ions of  the  Supreme  Court  of  the  United  States  upon 
the  subject,  will  be  disposed  to-day  to  question  the 
wisdom  and  the  fairness  with  which  the  very  difficult 
question  of  how  to  distribute  this  fund  was  at  last 
determined.  The  truth  is,  there  was  everywhere, 
and  at  all  times,  a  purpose  evinced  on  the  part  of 
the  public  men  of  the  United  States  to  apply  this 
money  so  as  to  reach  the  largest  number  of  those 
American  merchants  and  sailors  who  had  suffered 
loss  through  the  encouragement  afforded  by  Great 
Britain  to  the  presence  of  Confederate  cruisers 
upon  the  high  seas. 


CHAPTER  XI 

AFTEKMATH 

UPON  an  occasion  where  it  has  become  necessary 
for  the  representatives  of  several  powers  to  unite 
in  subscribing  a  document,  —  such,  for  example, 
as  a  treaty,  —  it  is  customary,  since  all  the  parties 
to  the  instrument  act  in  the  place  of  sovereigns, 
and  therefore  stand  upon  an  equality,  to  deter- 
mine by  lot  the  order  of  precedence  to  be  observed 
in  the  ceremony  of  affixing  their  signatures.  If  this 
method  were  adopted  at  Geneva —  as  was  probably 
the  case  —  it  curiously  enough  happened  that  the 
first  honor  fell  to  the  United  States.  The  text  of 
the  decision  and  award,  handsomely  engrossed, 
fills  twenty  folio  pages,  and  is  signed  hi  the  follow- 
ing order:  Charles  Francis  Adams  (in  a  clear  hand, 
that  may  be  styled  elegant),  Frederick  Sclopis, 
Staempfli,  Vicomte  d'ltajuba.  Mr.  John  Davis, 
who  sailed  from  Liverpool  in  the  Oceanic,  29  Sep- 
tember, 1872,  brought  the  document  home.  The 
sheets  are  bound  in  heavy  covers,  and  carefully 
preserved  in  a  morocco  case,  in  the  Library  of  the 
Department  of  State. 

These  pages  being  devoted  to  a  narrative  of  events 
as  they  from  time  to  time  occurred  relating  to  the 
origin  of  the  Tribunal  created  for  the  settlement 


356          THE  GENEVA  TRIBUNAL 

of  the  "Alabama  Claims,"  and  the  progress  of  its 
work,  it  does  not  properly  come  within  their  pro- 
vince to  discuss  the  opinions  filed  by  the  several 
Arbitrators.  The  terms  of  the  decision  and  award 
have  been  stated,  as  a  part  of  the  record  of  what 
was  accomplished  by  the  Tribunal;  but  space  does 
not  suffice  for  a  review  of  these  opinions.  Some- 
thing has  been  said  of  the  behavior  displayed  by  the 
Lord  Chief  Justice  in  thrusting  a  bulky  document 
upon  his  colleagues  at  literally  the  last  moment,  and 
asking  that  without  reading  a  word  they  should 
assent  to  making  it  a  part  of  the  record  of  the  pro- 
ceedings. If  the  sudden  appearance  of  the  docu- 
ment is  to  be  regarded  as  extraordinary,  the  nature 
of  its  contents  when  studied  will  prove  to  be  still 
more  so.  It  is  scarcely  to  be  expected  that  I  should 
pass  it  by  without  a  word  of  comment. 

Sir  Alexander  is  prolix  in  the  process  of  commit- 
ting his  reasons  to  writing.  The  paper  reads  as  if 
the  writer  had  "crammed"  for  the  occasion.  He 
must  have  dashed  off  at  headlong  speed  what  he 
had  to  say,  since  the  "paper"  covers  no  less  than 
three  hundred  and  fifteen  (315)  closely  printed 
pages  of  "The  Papers  Relative  to  the  Treaty  of 
Washington."  The  four  other  Arbitrators  succeeded 
in  setting  forth  all  they  desired  to  put  on  record  hi 
one  hundred  and  seventy-six  (176)  pages. 

The  reader,  I  fancy,  would  hardly  thank  me  for 
giving  even  a  brief  resume  of  what  the  Lord  Chief 
Justice  has  here  promulgated.  His  style  is  diffuse, 


AFTERMATH  357 

as  if  his  pen  had  found  it  easier  to  run  along  than 
to  stop.  The  text  of  the  " Dissenting  Opinion"  is 
both  argumentative  and  aggressive.  No  doubt  at 
the  time  it  pleased  many  of  his  countrymen,  but 
there  were  Englishmen  who  did  not  like  it.  A  few 
of  the  former  class,  ardent  believers  in  the  superi- 
ority of  the  Chief  Justice  to  his  colleagues,  may 
have  had  the  courage  and  perseverance  to  read  it 
completely  through.  I  doubt,  however,  whether 
half  a  dozen  individuals  in  the  United  States,  other 
than  newspaper  writers,  or  later-day  historians, 
have  ever]  ploughed  far  enough  into  it  to  learn 
much  else  than  its  drift  and  general  character. 

The  most  striking  effect  that  it  appears  to  have 
wrought  was  the  calling-forth  of  a  scathing  reply 
from  the  one  American  who,  being  conversant 
with  all  the  facts,  was  provoked  to  attack  and  de- 
molish the  "  Reasons  "  of  the  Chief  Justice.  Soon 
after  Mr.  Cushing  had  landed  in  New  York,  he 
went  to  Washington,  and  there  (at  Wormley's 
Hotel)  he  completed  the  manuscript  of  a  book  that 
contains  probably  one  of  the  most  savage  rejoinders 
to  an  adversary  that  has  been  seen  in  political  lit- 
erature since  the  days  of  Junius.  The  manuscript 
I  carried  to  New  York,  where  I  arranged  with  a 
publishing -house  for  an  early  appearance  of  "The 
Treaty  of  Washington."  The  book  had  been  writ- 
ten for  the  hour.  Claimants  were  eager  to  learn 
in  an  authoritative  form  what  had  been  done  for 
their  relief  at  Geneva.  Mr.  Cushing  undertook  to 


358  THE  GENEVA  TRIBUNAL 

let  them  know,  and  while  doing  so  to  enlighten  their 
minds,  and  that  of  the  public  generally,  in  respect 
to  what  Caleb  Gushing  thought  of  the  Right  Hon- 
orable Sir  Alexander  Cockburn,  Lord  Chief  Justice 
of  England,  the  Arbitrator  named  by  Her  Britannic 
Majesty.  A  sufficient  reason  existed  why  the  senior 
Counsel  for  the  United  States  should  open  his  bat- 
teries, double-shotted,  upon  Sir  Alexander  Cock- 
burn. 

If  there  were  any  special  form  of  attainment  in 
which  Mr.  Cushing  took  pride,  it  consisted  of  his 
familiarity  with  the  political  institutions  and  public 
law  of  countries  foreign  to  his  own.  He  had  made 
a  lifelong  study  of  the  subject,  and  he  felt  con- 
fident that  he  had  in  hand  a  complete  stock  of  ac- 
curate information  in  shape  ready  for  immediate 
use.  In  this  confidence  he  was  well  justified.  It 
was  Cushing  who  had  furnished  Chapters  Three 
and  Four  of  the  American  Argument,  entitled, 
respectively,  " General;  Discussions  of  Questions 
of  Law  "  and  "  Miscellaneous  Considerations."  I 
remember  taking  down  from  dictation  the  text  of 
these  chapters,  at  a  standing  desk,  in  a  chamber  of 
Mr.  Cushing's  house,  in  the  Rue  Galilee;  and  how 
greatly  I  marvelled  at  the  man's  learning  and  his 
facility  of  expression.  What  he  dictated  required 
no  revision,  save  possibly  a  verbal  correction  or  two, 
the  fault  of  his  secretary. 

The  tone  and  temper  of  the  British  Arbitrator's 
"Opinion"  is  anything  but  judicial.  Sir  Alexander 


AFTERMATH  359 

descends  from  the  bench,  not  only  to  display  the 
vehemence  of  an  advocate,  but  to  act  the  part  of 
a  caustic  and  virulent  critic.  His  language  invites 
reply.  It  brought  one. 

Mr.  Gushing  had  compared  the  laws  of  Italy, 
Brazil,  Switzerland,  France,  Spain,  Portugal,  The 
Netherlands,  and  all  other  Governments  of  Europe, 
except  Great  Britain,  with  those  of  Great  Britain 
herself,  in  respect  to  unauthorized  military  and 
naval  expeditions  in  violation  of  neutrality.  He 
argued  that  the  primary  fact  was  the  "preventive" 
action  of  the  Government  in  those  countries  first 
named;  whereas,  in  Great  Britain  it  was  the  "puni- 
tive." 

Of  this  argument  Sir  Alexander  says:  "A  stranger 
misrepresentation  could  scarcely  have  been  penned." 
"Untrue,"  "nothing  of  the  kind,"  " without  the 
shadow  of  a  foundation,"  —  these  are  terms  freely 
used  by  the  Lord  Chief  Justice,  by  way,  let  it  be 
remembered,  of  "judicial  utterance."1 

Sir  Alexander  probably  knew  which  one  of  the 
Counsel  had  written  the  paragraphs  in  question, 
though  the  fact  of  authorship  was  of  small  conse- 
quence, for  all  three  of  the  Counsel  by  signing  the 
Argument  stood  as  sponsors  for  everything  that 
the  Argument  contained.  The  Lord  Chief  Justice's 
arraignment  goes  on:  "The  imagination  of  the 
writer  must  have  been  singularly  lively,  while  his 
conscience  must  have  slept,  who  could  venture  to 

*  Gen.  Arb.,  vol.  iv,  p.  284. 


360  THE  GENEVA  TRIBUNAL 

put  on  paper  the  following  passages."  Here  he 
quotes  three  more  short  paragraphs  from  Mr.  Cush- 
ing's  text.  To  still  larger  excerpts  Sir  Alexander, 
in  his  "  Opinion,"  after  styling  the  language  "  un- 
generous and  unjust,"  replies  as  follows:  — 

"There  is  in  this  extraordinary  series  of  propositions 
the  most  singular  confusion  of  ideas,  misrepresentation 
of  facts,  and  ignorance,  both  of  law  and  history,  which 
were  perhaps  ever  crowded  into  the  same  space,  and  for 
my  part  I  cannot  help  expressing  my  sense,  not  only  of 
the  gross  injustice  done  to  my  country,  but  also  of  the 
affront  offered  to  this  Tribunal  by  such  an  attempt  to 
practise  on  our  supposed  credulity  or  ignorance." 

"It  is  not  true,"  the  Chief  Justice  repeats  at  the 
head  of  three  successive  paragraphs;  and  then  pro- 
ceeds to  point  out  "the  transparent  fallacy  which 
runs  through  the  whole  of  this  series  of  declamatory 
assertions."  l 

No  wonder  that  Mr.  Cushing's  tranquillity  dis- 
appeared. Such  accusations  as  these  levelled  against 
his  knowledge  of  public  law  we  may  well  believe 
stung  the  veteran  publicist  into  rage  —  all  the  more, 
because  there  was  no  opportunity  for  him  to  meet 
his  assailant  face  to  face.  Space  does  not  permit 
my  quoting  the  form  of  Mr.  Cushing's  answer.  The 
reader  can  turn  to  Cushing's  "The  Treaty  of  Wash- 
ington," and  observe  for  himself  with  what  spirit 
its  pages  are  aglow. 

The  following  extract,  however,  presents  a  fair 

1  Gen.  Arb.,  vol.  iv,  p.  286. 


AFTERMATH  361 

specimen  of  Mr.  Cushing's  style,  and  summarizes 
the  complaint  that  he  lodges  against  the  Parthian 
opponent  who  has  thus  fiercely  attacked  him:  — 

"While  the  Chief  Justice  exhausts  himself  in  fault- 
finding with  the  Counsel  of  the  United  States,  it  is  ob- 
servable that  he  seldom,  if  ever,  grapples  with  their  ar- 
guments, but  shoots  off  instead  into  epithets  of  mere 
vituperation.  Indeed,  if  it  were  worth  while,  it  would  be 
easy  to  show  that  he  did  not  really  read  that  which  he 
so  intemperately  criticises."  l 

To  us  who  can  look  back  upon  it  after  the  lapse 
of  years,  all  this  recrimination  stands  out  as  an 
unseemly  quarrel.  But  Mr.  Gushing,  it  must  be 
admitted,  had  the  excuse  of  intense  provocation. 
He  accepted  the  challenge.  He  takes  Sir  Alexander 
in  hand,  and  administers  a  rebuke,  the  like  of  which 
is  seldom  seen.  After  charging  the  Lord  Chief 
Justice  with  " inaccuracy/'  "confusion  of  mind," 
"disingenuousness,"  and  other  shortcomings  in  his 
"paper,"  Mr.  Gushing  winds  up  by  saying  that  "it 
was  dishonorable  in  him  to  smuggle  it  into  the 
archives  of  the  Tribunal,  and  to  publish  it  in  the 
London  Gazette  as  the  official  act  of  an  Arbitrator." 2 

Mr.  Gushing  takes  pains  to  point  out  that  Sir 
Alexander  Cockburn's  behavior  was  not  everywhere 
approved  in  England.  He  cites  a  speech  made  at 
Glasgow,  29  September,  1872,  by  the  Chancellor 
of  the  Exchequer  (Robert  Lowe),  who  said  that  he 

1  The  Treaty  of  Washington,  p.  136. 
*  Ibid.,  p.  149. 


362  THE  GENEVA  TRIBUNAL 

regretted  that  the  Lord  Chief  Justice  did  not  take 
the  course  of  simply  signing  the  award  with  the 
other  Arbitrators,  it  being  perfectly  well  known 
that  he  differed  from  them  in  certain  respects,  which 
would  appear  by  the  transactions  of  the  Award.1 

Before  passing  from  this  topic,  it  may  be  ob- 
served that  the  Cockburn-Cushing  controversy 
furnishes  the  solitary  instance  of  a  clash  between 
individuals  (other  than  momentary  contentions,  in 
the  heat  of  argument,  during  the  sessions  of  the 
Tribunal)  engaged  in  the  proceedings  at  Geneva. 
The  labors  of  the  summer,  as  has  already  been 
stated,  engendered  a  feeling  of  personal  esteem 
between  the  parties.  Englishmen  bade  Americans 
good-bye  in  a  friendly  manner,  and  not  without 
regret.  Says  Markheim  (Sir  Alexander  Cockburn's 
secretary),  writing  to  me  from  the  Savile  Club, 
London,  19  January,  1873: — 

"Everybody  here  is  greatly  relieved;  and  I  think  the 
results  of  the  Geneva  Arbitration  are  more  and  more 
appreciated,  and  will  continue  to  be  so,  by  the  two  coun- 
tries, now  that  our  family  quarrel  is  settled." 

As  the  day  drew  nigh  that  was  to  mark  the  close 
of  our  labors,  and  with  it  the  breaking-up  of  an 
intercourse  characterized  by  mutual  respect  and 
good  feeling,  the  idea  seems  to  have  occurred  alike 
to  each  party  to  have  a  group  photograph  taken 
for  purposes  of  exchange.  Our  picture  was  satisfac- 
tory, except  that,  to  our  regret,  Mrs.  Waite  and 

1  The  Treaty  of  Washington,  p.  146. 


AFTERMATH  363 

Miss  Waite  were  absent  upon  a  travelling  tour. 
That  of  the  English  party  was  pronounced  equally 
good.  It  embraced  their  whole  number,  with  young 
" Eddie"  Palmer  (the  present  Lord  Selborne)  sit- 
ting on  the  ground  in  front.  Individual  photo- 
graphs were  also  exchanged.  These  minor  incidents 
are  mentioned  as  a  proof  of  the  agreeable  personal 
relations  that  subsisted  between  the  parties,  not- 
withstanding the  spirit  and  vigor  that  in  the  dis- 
charge of  official  duties  had  markedf  a  few  of  our 
controversial  discussions. 

Upon  the  eve  of  departure  from  the  scene  of  their 
successful  labors,  Mr.  Davis  and  the  Counsel  ob- 
served in  a  becoming  manner  the  courtesies  of  the 
occasion.  They  united  in  addressing  and  sending 
a  letter,  14  September,  1872,  to  the  President  of  the 
Council  of  State  of  the  Canton  of  Geneva,  express- 
ing their  grateful  acknowledgments  for  the  hospi- 
table treatment  that  had  been  accorded  them  during 
their  stay.1  A  letter  of  like  tenor  written  at  greater 
length,  was  despatched  by  our  Agent  and  Counsel, 
under  date  of  15  September,  1872,  to  the  President 
and  Council  of  State  of  the  Swiss  Confederation. 
This  farewell  communication,  besides  thanking  the 
Swiss  Government  for  hospitable  attentions,  drew 
a  parallel  between  Switzerland  and  the  United  States, 

1  The  letter,  of  course,  was  written  in  French.  Alluding  to  Geneva 
as  a  city  of  liberty  and  of  order,  it  quotes  the  language  of  an  emi- 
nent statesman,  who  has  spoken  of  Geneva  as  "le  grain  de  muse 
qui  parfume  le  monde"  Manuscript  Archives,  Department  of  State. 


364  THE  GENEVA  TRIBUNAL 

and  pointed  out  the  pleasing  resemblance  that  the 
dual  form  of  government  affords;  and  conveyed  in 
befitting  terms  a  sense  of  the  high  esteem  in  which 
the  United  States  hold  the  Government  and  the 
people  of  Switzerland. 

As  soon  as  the  Tribunal  had  come  to  an  end, 
everybody,  with  more  or  less  promptitude,  de- 
parted from  Geneva,  except  that  Mr.  Adams  and 
his  family  sojourned  for  a  while  in  their  comfortable 
country-home  near  by.  Mr.  and  Mrs.  Bancroft 
Davis,  after  making  a  delightful  trip  through  Tou- 
raine,  sailed  for  home,  24  October,  in  the  Saint 
Laurent,  of  the  French  Line.  Allusion  has  already 
been  made  to  the  visit  of  Mr.  and  Mrs.  E  varts,  early 
in  October,  to  the  Palmers,  at  Blackmoor,  Petersfield. 
Sir  Roundell  had  been  made  Lord  Chancellor.  He 
was  to  receive  the  great  seal  on  the  15th  of  October. 
Mr.  Gushing  found  his  way  to  Paris,  and  sailed  by 
the  French  Line  from  Havre. 

All  three  of  the  Counsel  arrived  home  in  season 
to  join  in  a  report  to  the  Secretary  of  State,  under 
date  of  25th  November,  1872,  closing  with  an  ex- 
pression of  hope  that  the  President  would  see  in 
the  final  award  of  the  Tribunal  proof  that  they  had 
not  been  wanting  to  the  important  trust  which  had 
been  confided  to  them.1 

Having  a  little  time  at  my  disposal  for  travel,  I 
followed  the  advice  of  Mr.  Gushing  and  went  to 
England.  I  visited  both  universities  and  nearly 

1  Gen.  Arb.,  vol.  iv,  p.  550. 


AFTERMATH  365 

every  one  of  the  cathedral  towns,  and  journeyed 
north  as  far  as  Perth.  Three  enjoyable  days  were 
spent  in  Edinburgh,  where  I  witnessed  a  wrestling 
match  between  Cumberland  and  Westmoreland 
men,  and  where  on  Sunday  I  heard  Dean  Ramsay 
preach. 

A  happy  experience  was  a  visit  to  Oxford,  where 
I  stayed  with  Markheim  at  his  rooms,  Queen's 
College,  of  which  he  was  a  Fellow.  We  were  sum- 
moned to  dinner  by  the  sound  of  a  trumpet,  —  the 
custom  dating,  so  I  was  told,  from  those  troublous 
times  when  Charles  I  was  finding  shelter  for  a  while 
at  Oxford.  After  dinner  we  resorted  to  the  "  Com- 
bination Room,"  where,  as  the  guest  of  the  evening, 
I  came  in  for  a  prolonged  questioning  about  "the 
States."  It  was  evident  that  those  learned  gentle- 
men (each  of  whom,  I  think,  save  only  Markheim, 
was  greatly  my  senior)  had  not  made  the  United 
States  of  America  and  its  institutions  a  special 
subject  of  their  profound  study.  The  evening  passed 
pleasantly,  and  nothing  could  have  been  more  frank 
and  hearty  than  the  welcome  extended  to  me  by 
these  scholars.  I  had  plenty  of  time  in  London, 
where  I  took  comfortable  lodgings  in  Old  Caven- 
dish Street,  Cavendish  Square.  One  Sunday  I  vis- 
ited the  "Tabernacle,"  to  hear  the  famous  Baptist 
preacher,  Spurgeon.  The  following  narrative  from 
notes  that  I  jotted  down  at  the  time  will,  I  hope, 
interest  the  reader. 

By  far  the  most  remarkable  preacher  in  London 


366  THE  GENEVA  TRIBUNAL 

to-day  [1872]  is  [Charles  H.]  Spurgeon,  who  holds 
well  a  reputation  for  eloquence,  power,  and  sim- 
plicity of  style,  for  which  he  became  so  well  known 
at  least  twenty  years  ago.  He  preached  at  Kensing- 
ton, a  quarter  of  London  by  no  means  fashionable. 
I  crossed  Westminster  Bridge,  a  noble  structure, 
finished  ten  years  ago,  which  is  eighty-five  feet  in 
width.  Its  pavement  curves  a  little  upward,  but 
very  gradually.  On  the  other  side  of  the  river  we 
pass  Astley's  Amphitheatre  —  a  familiar  name. 
This  is  the  Surrey  side  of  the  Thames,  so  called 
because  in  the  county  of  Surrey,  whereas  the  side 
from  which  we  crossed  is  in  Middlesex. 

Mr.  Spurgeon's  Tabernacle  is  on  Newington 
Butts  Road.  It  was  half -past  ten  of  a  Sunday  morn- 
ing when  we  arrived;  service  begins  at  11  o'clock, 
and  streams  of  people,  all  going  in  one  direction, 
were  a  sure  guide  to  the  building.  It  presented  a 
tall  Greek  front,  with  flights  of  steps.  I  passed  in 
the  gateway,  and  found  several  persons  keeping 
the  entrance.  A  policeman  handed  me  a  small  green 
envelope,  which  was  to  admit  me,  saying  as  he 
did  so  that  anything  I  chose  to  give  for  a  charitable 
purpose  (I  have  forgotten  what)  I  might  enclose 
in  the  envelope,  and  drop  into  a  box,  in  plain  view. 

Going  down  to  the  bottom  of  the  yard,  I  mounted 
some  steps,  and  found  myself  at  last  in  the  first 
gallery  of  the  Tabernacle,  perhaps  thirty-five  feet 
above  the  floor,  and  not  more  than  fifty  feet  from 
the  pulpit,  or  from  the  space  that  a  pulpit  would 


AFTERMATH  367 

have  occupied  if  Mr.  Spurgeon  had  used  one.  The 
building,  which  is  of  stone  and  thoroughly  made,  is 
of  immense  size.  The  proportions,  however,  are  so 
good  that  an  inexperienced  eye  like  my  own  would 
at  first  hardly  suspect  its  great  capacity.  There 
were,  I  should  say,  between  five  and  six  thousand 
people  present, —  at  least  the  Tabernacle  easily 
holds  that  number,  and  every  seat  was  taken,  the 
aisles  filled,  the  stairs  occupied,  and  I  could  see 
from  where  I  was  as  many  as  three  or  four  hun- 
dred men  and  women  standing.  There  is  a  spacious 
floor,  then  a  row  of  seven  seats  in  depth  running 
clear  around  the  building,  and  another  gallery 
higher  up,  of  even  greater  depth,  at  the  rear. 

Mr.  Spurgeon  has  no  pulpit.  He  uses  a  common 
table,  a  small  sofa,  and  a  chair.  On  the  table  were  a 
Bible,  a  hymn-book,  a  decanter  of  water,  and  a  glass. 
The  table  stands  upon  a  platform  that  sweeps  out 
into  the  centre,  for  perhaps  a  fifth  of  the  depth  of 
the  hall,  and  is  surrounded  by  a  railing. 

The  congregation  appeared  to  be  made  up  of 
people  of  the  middle  class;  and  it  is  to  be  observed 
that  there  were  rather  more  men  than  women.  They 
were  mostly  young  people;  but  few  grey  hairs  were 
to  be  seen.  People  were  pouring  in,  and  suddenly, 
while  I  was  watching  the  flood,  the  doors  were 
closed  —  the  preacher  had  come  in  and  was  at  his 
table  to  begin  a  prayer.  There  was  perfect  silence 
as  he  began  to  speak  in  a  somewhat  dull  but  not 
altogether  unsympathetic  tone — it  seems  he  was 


368  THE  GENEVA  TRIBUNAL 

suffering  from  a  severe  cold.  As  he  closed,  the  doors 
were  thrown  open  again,  and  soon  there  was  not 
an  inch  of  room  to  spare  in  the  vast  edifice. 

There  was  nothing  theatrical  or  sensational  about 
the  man.  He  looked  to  be  thirty-seven  or  thirty- 
eight,  though  he  was  really  probably  eight  or  ten 
years  older  than  that, — a  square-shouldered,  broad- 
chested,  well-knit  frame;  of  fair  complexion,  me- 
dium height,  and  wearing  a  thin,  not  long,  beard. 
Not  intellectual  looking,  he  reminded  you  rather 
of  an  energetic,  successful  man  of  business,  who 
knows  human  nature,  and  has  plenty  of  tact  and 
endurance,  with  a  disposition  to  look  on  the  sunny 
side  of  life.  Mr.  Spurgeon  talked  not  in  a  high  key, 
but  distinctly,  and  hi  as  pure  Anglo-Saxon  as  any 
man  I  ever  heard.  He  certainly  spoke  English 
better  than  any  of  the  Englishmen  to  whom  I  have 
listened.  Never  at  a  loss  for  a  word,  he  yet  was  not 
impetuous;  nor  did  he  appear  to  think  faster  than 
he  could  well  express  himself.  His  discourse  never 
hurried  him;  he  had  it  well  in  hand. 

He  used  gestures  a  good  deal,  but  nothing  of  the 
pump-handle  kind.  Whenever  specially  emphatic 
he  would  advance  to  the  rail  in  front  (for  his  desk 
or  table  stood  in  a  slanting  position  at  his  left,  leav- 
ing him  room  to  pass  forward  or  back),  and  some- 
times with  both  hands  outstretched  he  would  finish 
his  periods.  But  it  is  hardly  fair  to  speak  of  "  pe- 
riods, "  for  in  what  he  said  there  was  a  conspicuous 
absence  of  studied  arrangement.  His  sermon  was 


AFTERMATH  369 

without  notes,  —  a  sheet  of  paper  lay  upon  the  open 
Bible,  —  but  his  remarks  were  entirely  extempore. 
The  sight  of  a  reporter  sitting  just  below  brought  to 
mind  the  reflection  to  how  great  a  number  of  Eng- 
lish men  and  women  was  this  plain,  earnest  speaker 
addressing  himself,  and  how  great  a  power  for  good 
must  he  be. 

After  a  prayer,  there  was  a  hymn  given  out.  A 
man  stepped  to  the  left  hand  of  the  preacher,  and 
struck  the  keynote,  then  the  whole  assembly  sang 
gloriously  a  simple  tune.  No  organ,  no  choir.  Then 
Mr.  Spurgeon  read  a  long  chapter  frpm  Isaiah, 
with  a  good  deal  of  running  comment.  Another 
hymn  followed,  in  which  the  preacher  joined  (tim- 
idly, I  thought  —  perhaps  the  cold  explains  it),  and 
a  long  prayer,  during  which  he  knelt  by  the  chair 
at  the  front.  He  prayed  that  they  might  spend  the 
time  together  as  though  it  were  the  last  Sunday  he 
should  ever  preach  and  pray  there.  The  sight  of 
the  whole  congregation  swaying  back  to  the  up- 
right position  at  the  close  was  wonderful  —  a  sea  of 
faces.  And  that  reminds  me  I  must  quote  a  figure 
he  used  in  his  prayer  for  those  who  had  much  suf- 
fered. He  said  the  Lord  had  indeed  "sent  wave 
after  wave  over  them,  but  may  they  prove  waves 
to  wash  and  not  to  drown." 

His  text  was  from  Isaiah:  "A  root  out  of  a  dry 
ground."  l  He  proceeded  to  divide  the  text,  or  I 
should  say  rather  his  sermon,  into  four  heads,  in 

1  Chap,  liii,  v.  2. 


370  THE  GENEVA  TRIBUNAL 

the  old-fashioned  way.  I  wonder  if  I  can  recollect 
even  three  of  them:  first,  the  meaning  of  the  text 
temporarily;  second,  its  meaning  spiritually,  —  no, 
I  am  puzzled  at  the  artificial  divisions,  but  I  re- 
member well  the  drift  of  his  argument.  He  con- 
tended that  Christ  came  at  a  time  when  everything 
was  against  the  growth  of  Christianity.  Human 
nature  is  against  it,  —  and  he  went  on  to  enlarge 
upon  the  simplicity  of  Christ's  religion,  no  choirs 
singing,  no  rituals, —  "He  was  the  greatest  non- 
Conformist  who  ever  lived";  no  gorgeous  architec- 
ture—"I  cannot  find  these  in  the  Bible."  "If  God 
honors  a  preacher  in  public,  he  often  makes  him 
smart  behind  the  door  with  the  rod  of  his  correc- 
tion." There  are  some  learned  men  whom  God  can't 
use.  He  takes  the  unlearned  in  preference.  "People 
go  to  hear  a  young  man,  —  they  know  young  men 
are  fools, — or  an  unlearned  man,  for  when  bespeaks 
well  and  tells  the  people  truths,  it  is  God  who  does 
the  work."  I  can  give  but  an  imperfect  hint  at  the 
current  of  his  thoughts.  His  sermon  was  not  a  log- 
ical argument,  nor  an  appeal,  but  rather  a  rich  and 
stimulating  series  of  illustrations  of  the  truth  which 
he  had  laid  down  at  the  outset,  —  that  it  was  the 
root  that  gave  vitality  to  the  soil,  and  not  the  soil 
that  afforded  growth  to  what  was  planted  in  it. 
"St.  Peter  did  n't  make  Christianity;  it  was  Christ- 
ianity that  made  Peter." 

He  was  rather  pronounced  against  the  Roman 
Catholics.   He  praised  the  Puritans  till  they  took 


AFTERMATH  371 

the  sword,  "when  God  swept  them  away,"  and  he 
cautioned  the  Dissenters  not  to  meddle  too  much 
with  politics.  He  spoke  about  an  hour,  though  it 
seemed  not  half  that  time,  and  closed  with  an  elo- 
quent figure  of  the  great  temple  of  gold  where  no 
prince  could  say  I  helped  build  that  glorious  win- 
dow or  that  door  of  agate;  or  even  angel  boast  I 
helped  lay  that  floor  of  transparent  gold,  —  all 
was  God,  God!  God!!  It  was  well  sustained,  and 
the  picture  for  the  moment  was  wondrous,  —  the 
picture  not  only  of  the  great  Temple  in  our  imag- 
ination, but  the  actual  picture  before  our  eyes  of 
this  single  speaker  with  thousands  in  front,  above, 
behind  and  below  him,  all  in  rapt  attention,  while 
he  went  forward  hi  conscious  mightiness  of  speech, 
almost  in  a  rhapsody,  yet  swaying  all  as  one  vast 
instrument  under  his  perfect  and  firm  control. 

While  walking  in  the  street,  in  London,  one  morn- 
ing, near  the  Courts,  in  company  with  Mr.  Evarts, 
we  met  Mr.  Judah  P.  Benjamin,  formerly  Secre- 
tary of  State  of  the  Confederate  States.  Mr.  Evarts, 
who  knew  Mr.  Benjamin,  greeted  him  heartily  and 
presented  me.  Mr.  Benjamin  was  of  medium  height 
and  striking  appearance.  He  was  exceedingly 
courteous.  He  expressed  himself  as  happily  enjoy- 
ing very  prosperous  times  in  his  new  home.  Ben- 
jamin has  been  described  as  "the  brains  of  the  Con- 
federacy." He  had  gained  the  reputation  of  being 
one  of  the  very  ablest  lawyers  that  this  country 
has  ever  produced;  and  I  was  particularly  pleased 


372  THE  GENEVA  TRIBUNAL 

to  have  the  opportunity  of  meeting  him  for  a  few 
moments,  under  the  wing  of  Mr.  Evarts. 

It  was  my  good  fortune,  after  a  profitable  season 
of  travel,  to  be  a  fellow  passenger  with  Mr.  Charles 
Francis  Adams  on  the  return  home.  It  was  on  board 
of  the  Russia,  the  crack  ship  of  the  Cunard  Line, 
which  sailed  from  Liverpool  on  the  2d  of  Novem- 
ber. Mr.  Adams  kept  to  himself  all  the  way  over. 
I  doubt  if  he  exchanged  a  word  (except  of  needful 
salutation)  with  any  one  of  the  passengers  other 
than  myself,  whom  he  was  kind  enough  to  have  in 
his  company  for  two  or  three  hours  each  day.  It 
was  no  less  delightful  than  profitable  for  me  to 
listen  to  his  comments  in  a  free  discourse  on  public 
men  and  public  events.  To  the  world  in  general 
Mr.  Adams  presented  a  cold  exterior,  but  I  found 
little  by  little  that  he  showed  himself  to  be  really 
sympathetic,  considerate,  and  generous.  The  voy- 
age was  to  me  a  season  of  rare  enjoyment.1 

1  Among  the  passengers  was  Mr.  John  Hoey,  of  the  Adams 
Express  Company  of  New  York,  who  seemed  to  know  everybody 
on  board,  and  whom  everybody  liked  just  as  everybody  used  to 
be  charmed  by  his  wife's  acting  at  Wallack's.  One  day,  Mr. 
Hoey  said  to  me  that  it  would  be  very  gratifying  to  him,  and  to 
many  of  the  passengers,  to  have  an  opportunity  of  shaking  hands 
with  Mr.  Adams.  Accordingly,  I  told  Mr.  Adams,  and  he  said  he 
had  no  objection.  He  went  out  on  the  deck.  I  introduced  Mr.  Hoey 
to  him.  Mr.  Hoey  thereupon  presented  a  long  line  of  people.  Mr. 
Adams  seemed  to  be  undergoing  an  ordeal  with  all  the  heroism  he 
could  muster.  There  was,  it  must  be  confessed,  an  absence  of 
warmth  about  it  that  I,  for  one,  noticed,  but  Mr.  Hoey  appeared 
perfectly  well  satisfied  with  the  carrying-out  of  the  programme. 
Certainly  Mr.  Adams  seemed  relieved  when  it  was  concluded. 


AFTERMATH  373 

I  was  standing  at  the  side  of  Mr.  Adams  when 
the  pilot  came  on  board,  and  gave  us  news  of  the 
great  fire  in  Boston.  A  very  valuable  building  be- 
longing to  Mr.  Adams  had  been  destroyed.  He 
received  the  intelligence  with  perfect  equanimity. 
We  also  heard — and  were  not  in  the  least  surprised 
— that  President  Grant  had  been  reflected.  We 
came  up  the  harbor  of  New  York  about  sunset,  at 
the  close  of  a  beautiful  day  (13  November,  1872), 
and  had  reached  —  home. 

While  staying  at  Portsmouth  for  a  brief  period, 
I  accepted  an  invitation  to  visit  Mr.  and  Mrs. 
Adams  at  Quincy.  I  shall  never  forget  the  pleasure 
which  that  visit  brought  me.  In  a  small  building, 
which  I  think  was  of  stone,  detached  from  the  house 
and  used  as  a  library,  Mr.  Adams  showed  me  the 
original  of  the  diary  kept  by  his  father,  John  Quincy 
Adams,  very  many  volumes  in  number. 

I  feel  sure  that  Mr.  Adams  held  in  special  favor 
all  the  gentlemen,  both  old  and  young,  with  whom 
he  was  associated  at  Geneva.  He  certainly  won 
for  himself  the  unbounded  respect  and  esteem  both 
of  his  own  country  and  of  England.  He  was  officially 
thanked  by  the  Queen  and  by  the  President. 

Earl  Granville  addressed  a  letter  to  Mr.  Adams, 
as  follows:  — 

FOREIGN  OFFICE,  September  28, 1872. 
Sm: 

I  cannot  allow  the  proceedings  at  Geneva  to  be  brought 
to  a  close  without  expressing  to  you  in  behalf  of  Her 


374  THE  GENEVA  TRIBUNAL 

Majesty's  Government  their  acknowledgment  for  the 
patience  and  attention  which  in  your  character  of  Arbi- 
trator you  exhibited  during  the  laborious  and  protracted 
discussions  in  which  you  have  been  engaged. 

Her  Majesty's  Government  sincerely  trust  that,  while 
the  result  of  the  labors  of  the  Tribunal  shall  obliterate 
all  feelings  of  animosity  between  Great  Britain  and  the 
United  States  arising  out  of  the  events  of  the  late  civil 
war,  the  proof  that  has  now  been  afforded  that  differ- 
ences between  nations  may  be  adjusted  by  other  means 
than  by  resorting  to  war,  may  conduce  to  the  mainten- 
ance of  peace  among  them  and  to  the  general  welfare 
and  happiness  of  mankind.1 

I  have  nowhere  discovered,  however,  that  the 
Government  of  the  United  States  at  any  time  ex- 
pressed their  thanks  to  Sir  Alexander  Cockburn. 

The  neutral  Arbitrators  let  it  be  known  that  they 
would  decline  to  receive  compensation  for  their  serv- 
ices. After  sending  to  each  of  them  the  official  letter 
of  thanks,  the  Governments  of  Great  Britain  and 
the  United  States,  acting  in  harmony,  determined 
that  they  would  present  to  each  a  gift,  that  should 
consist  of  articles  of  silver  workmanship,  in  grate- 
ful memory  of  his  unselfish  labor.  This  plan  was  ac- 
cordingly carried  out.  The  presentation  to  Viscount 
d'ltajuba  took  place  at  Paris,  where  Mr.  Wash- 
burne  had  the  pleasure  of  the  company  of  General 
Schenck,  who  happened  to  be  at  the  French  capital 
upon  that  occasion.2 

1  Granville:  British  State  Papers  (1873),  vol.  74. 

8  During  the  second  winter  of  his  residence  at  Berlin  as  Minister 


AFTERMATH  375 

Mr.  Bancroft  Davis,  in  his  report  to  Secretary 
Fish  of  the  successful  termination  of  the  interests 
entrusted  to  him  by  the  President,  after  speaking 
somewhat  in  detail  of  the  events  that  occurred  at 
Geneva,  concludes  as  follows:  — 

"Thus,  surrounded  by  difficulties  which  at  one  time 
seemed  insuperable,  this  great  cause  has  reached  its  con- 
clusion. Nations  have,  ere  now,  consented  to  adjust 
by  arbitration  questions  of  figures  and  questions  of 
boundaries;  but  the  world  has  had  few,  if  any,  earlier 
examples  of  the  voluntary  submission  to  arbitration  of  a 
question  in  which  a  deep-seated  conviction  of  injuries 
and  wrongs,  which  no  possible  award  could  compensate, 
animated  a  whole  nation.  It  is  out  of  such  sentiments  and 
feelings  that  wars  come.  The  United  States  elected  the 
path  of  peace.  Confident  of  receiving  justice,  they  laid 
the  story  of  their  wrongs  before  an  impartial  tribunal. 
This  story,  so  grievous  in  its  simple  truthfulness,  threat- 
ened for  a  time  to  break  up  the  peaceful  settlement  which 
the  parties  had  promised  each  other  to  make.  Notwith- 
standing all  obstacles,  however,  the  great  experiment 
has  been  carried  to  a  successful  end;  and  hereafter  it  can- 

of  the  United  States,  Bancroft  Davis  obtained  a  leave  of  absence, 
and  went  with  Mrs.  Davis  to  Egypt.  They  stopped  at  various 
places  on  the  way,  and  among  them  at  Turin.  To  quote  from  a 
note  which  Mrs.  Davis  has  lately  written  to  me:  "The  Sclopis  were 
devoted  to  us.  We  dined  with  them  on  [the  anniversary  of]  their 
wedding-day.  The  table  was  decorated  with  the  Tiffany  silver, 
a  centre-piece  and  two  wine-coolers,  if  I  remember  right.  After 
dinner,  Countess  Sclopis  used  the  coffee-service,  which  came  from 
Kirk's.  There  was  also  a  tea-service.  The  British  token  was  a  huge 
vase,  or  rather  bowl,  something  like  the  Warwick  Vase,  which 
stood  on  a  pedestal  in  a  corner  of  the  room." 


376          THE  GENEVA  TRIBUNAL 

not  be  denied  that  questions  involving  national  senti- 
ment may  be  decided  by  arbitration,  as  well  as  questions 
of  figures. 

"The  commander  who  had  been  permitted,  by  Pro- 
vidence, to  guide  some  of  the  greatest  military  events 
in  history,  has  thus,  in  civil  life,  assisted  in  presenting  to 
the  nations  of  the  world  the  most  conspicuous  example 
of  the  settlement  of  international  disputes  by  peaceful 
arbitration. 

"It  is  within  my  personal  knowledge  that  your  own 
counsels  have  also  had  a  large  share  in  shaping  this  great 
result."  l 

An  eminent  man  of  letters,  one,  moreover,  who 
has  achieved  honorable  distinction  hi  the  field  of 
English  statesmanship,  has  declared  that  — 

"The  Treaty  of  Washington  and  the  Geneva  Arbitra- 
tion stand  out  as  the  most  notable  victory  in  the  nine- 
teenth century  of  the  noble  art  of  preventive  diplomacy, 
and  the  most  signal  exhibition  hi  their  history  of  self- 
command  hi  two  of  the  three  democratic  Powers  of  the 
Western  World."  2 

As  we,  hi  America,  listen  to  this  utterance,  we  are 
reminded  anew  of  the  spirit  with  which  the  best 
thought  of  England  hastened  to  sustain  that  more 
generous  sense  of  international  duty,  of  the  advent 
of  which  the  triumph  at  Geneva  was  the  harbinger. 
Grateful  indeed  are  we  that  from  the  date  of  that 
event,  the  bonds  of  a  genuine  friendship  with  our 

»  Gen.  Ark.,  vol.  iv,  p.  14. 

8  Morley:  Life  of  Gladstone,  vol.  iii,  p.  413. 


AFTERMATH  377 

kinsmen  across  the  sea  have  grown  stronger  and 
stronger.  May  they  continue  unimpaired  for  gen- 
erations! 

In  parting  with  my  reader  let  me  add  a  single 
word  of  explanation.  Should  he  fancy  that  any  ex- 
pression of  mine  in  respect  to  national  conduct,  or 
by  way  of  criticising  an  individual  Englishman,  be 
unjust  or  uncharitable,  I  would  have  him  reflect 
that  the  cordial  good-will  now  happily  existing  in 
the  two  countries  tends  to  banish  from  memory  all 
thought  of  that  stirring  period  when  estrangement 
was  at  its  height,  —  and  thus  it  changes  entirely  his 
standpoint.  My  task  has  been  to  draw  a  picture  of 
those  days  of  dissension  and  of  heart-burning,  just 
as  they  were,  concealing  nothing.  National  sense 
of  injury  was  forever  buried  at  Geneva.  We  have 
been  looking  at  the  crowded  canvas  of  nearly  half 
a  century  ago,  only  to  make  out,  after  all,  that  the 
blessings  of  a  perfect  understanding  and  of  a  mutual 
liking  between  the  two  great  nations  have  thus  be- 
come by  contrast  all  the  more  precious. 


APPENDIX 


PROTOCOL  OF  MAY  4,  1871— TREATY  OF 
WASHINGTON 

(STATEMENT  BY  JOINT  PBOTOCOLISTS) 
(From  "  Mr.  Fish  and  the  Alabama  Claims,"  pp.  149-158) 

XXXVI 

PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COM- 
MISSIONERS ON  THE  PART  OF  THE  UNITED  STATES  OF 
AMERICA  AND  THE  HIGH  COMMISSIONERS  ON  THE 
PART  OF  GREAT  BRITAIN 

WASHINGTON,  May  4,  1871. 

The  High  Commissioners  having  met,  the  protocol 
of  the  conference  held  on  the  3d  of  May  was  read  and 
confirmed. 

The  High  Commissioners  then  proceeded  with  the 
consideration  of  the  matters  referred  to  them. 

The  statement  prepared  by  the  Joint  Protocolists,  in 
accordance  with  the  request  of  the  Joint  High  Com- 
missioners at  the  last  conference,  was  then  read  as 
follows:  — 

STATEMENT 
ARTICLES  I  TO  XI 

At  the  conference  held  on  the  8th  of  March  the  Ameri- 
can Commissioners  stated  that  the  people  and  Govern- 
ment of  the  United  States  felt  that  they  had  sustained 


382  APPENDIX 

a  great  wrong,  and  that  great  injuries  and  losses  were 
inflicted  upon  their  commerce  and  their  material  inter- 
ests by  the  course  and  conduct  of  Great  Britain  during 
the  recent  Rebellion  in  the  United  States;  that  what 
had  occurred  in  Great  Britain  and  her  colonies  during 
that  period  had  given  rise  to  feelings  in  the  United  States 
which  the  people  of  the  United  States  did  not  desire  to 
cherish  toward  Great  Britain;  that  the  history  of  the 
Alabama  and  other  cruisers  which  had  been  fitted  out, 
or  armed,  or  equipped,  or  which  had  received  augmenta- 
tion of  force  in  Great  Britain  or  in  her  colonies,  and  of  the 
operations  of  those  vessels,  showed  extensive  direct  losses 
in  the  capture  and  destruction  of  a  large  number  of  vessels 
with  their  cargoes,  and  in  the  heavy  national  expenditures 
in  the  pursuit  of  the  cruisers,  and  indirect  injury  in  the 
transfer  of  a  large  part  of  the  American  commercial 
marine  to  the  British  flag,  in  the  enhanced  payments  of 
insurance,  in  the  prolongation  of  the  war,  and  in  the 
addition  of  a  large  sum  to  the  cost  of  the  war  and  the 
suppression  of  the  Rebellion;  and  also  showed  that  Great 
Britain,  by  reason  of  failure  in  the  proper  observance 
of  her  duties  as  a  neutral,  had  become  justly  liable  for 
the  acts  of  those  cruisers,  and  of  their  tenders;  that  the 
claims  for  the  loss  and  destruction  of  private  property 
which  had  thus  far  been  presented  amounted  to  about 
fourteen  millions  of  dollars,  without  interest,  which 
amount  was  liable  to  be  greatly  increased  by  claims 
which  had  not  been  presented;  that  the  cost  to  which 
the  Government  had  been  put  in  the  pursuit  of  cruisers 
could  easily  be  ascertained  by  certificates  of  Government 
accounting  officers;  that  in  the  hope  of  an  amicable 
settlement,  no  estimate  was  made  of  the  indirect  losses, 


APPENDIX  383 

without  prejudice,  however,  to  the  right  to  indemni- 
fication on  their  account  in  the  event  of  no  such  settle- 
ment being  made. 

The  American  Commissioners  further  stated  that  they 
hoped  that  the  British  Commissioners  would  be  able 
to  place  upon  record  an  expression  of  regret  by  Her 
Majesty's  Government  for  the  depredations  committed 
by  the  vessels  whose  acts  were  now  under  discussion. 
They  also  proposed  that  the  Joint  High  Commission 
should  agree  upon  a  sum  which  should  be  paid  by  Great 
Britain  to  the  United  States,  in  satisfaction  of  all  the 
claims  and  the  interest  thereon. 

The  British  Commissioners  replied  that  Her  Majesty's 
Government  could  not  admit  that  Great  Britain  had 
failed  to  discharge  toward  the  United  States  the  duties 
imposed  on  her  by  the  rules  of  international  law  or  that 
she  was  justly  liable  to  make  good  to  the  United  States 
the  losses  occasioned  by  the  acts  of  the  cruisers  to  which 
the  American  Commissioners  had  referred.  They  re- 
minded the  American  Commissioners  that  several  ves- 
sels, suspected  of  being  designed  to  cruise  against  the 
United  States,  including  two  ironclads,  had  been  ar- 
rested or  detained  by  the  British  Government,  and  that 
that  Government  had  in  some  instances  not  confined 
itself  to  the  discharge  of  international  obligations,  how- 
ever widely  construed,  as,  for  instance,  when  it  acquired 
at  a  great  cost  to  the  country  the  control  of  the  Anglo- 
Chinese  Flotilla,  which,  it  was  apprehended,  might  be 
used  against  the  United  States. 

They  added  that  although  Great  Britain  had,  from  the 
beginning,  disavowed  any  responsibility  for  the  acts  of 
the  Alabama  and  the  other  vessels,  she  had  already  shown 


384  APPENDIX 

her  willingness,  for  the  sake  of  the  maintenance  of 
friendly  relations  with  the  United  States,  to  adopt  the 
principle  of  arbitration,  provided  that  a  fitting  Arbi- 
trator could  be  found,  and  that  an  agreement  could 
be  come  to  as  to  the  points  to  which  arbitration  should 
apply.  They  would,  therefore,  abstain  from  replying  in 
detail  to  the  statement  of  the  American  Commissioners, 
in  the  hope  that  the  necessity  for  entering  upon  a  length- 
ened controversy  might  be  obviated  by  the  adoption  of 
so  fair  a  mode  of  settlement  as  that  which  they  were 
instructed  to  propose;  and  they  had  now  to  repeat,  on 
behalf  of  their  Government,  the  offer  of  arbitration. 

The  American  Commissioners  expressed  their  regret 
at  this  decision  of  the  British  Commissioners,  and  said 
further  that  they  could  not  consent  to  submit  the  ques- 
tion of  the  liability  of  Her  Majesty's  Government  to 
arbitration  unless  the  principles  which  should  govern 
the  Arbitrator  in  the  consideration  of  the  facts  could 
be  first  agreed  upon. 

The  British  Commissioners  replied  that  they  had  no 
authority  to  agree  to  a  submission  of  these  claims  to 
an  Arbitrator,  with  instructions  as  to  the  principles  which 
should  govern  him  hi  the  consideration  of  them.  They 
said  that  they  should  be  willing  to  consider  what  prin- 
ciples should  be  adopted  for  observance  in  future;  but 
that  they  were  of  opinion  that  the  best  mode  of  con- 
ducting an  arbitration  was  to  submit  the  facts  to  the 
Arbitrator,  and  leave  him  free  to  decide  upon  them,  after 
hearing  such  arguments  as  might  be  necessary. 

The  American  Commissioners  replied  that  they  were 
willing  to  consider  what  principles  should  be  laid  down  for 
observance  in  similar  cases  in  future,  with  the  under- 


APPENDIX  385 

standing  that  any  principles  that  should  be  agreed  upon 
should  be  held  to  be  applicable  to  the  facts  in  respect  to 
the  Alabama  Claims. 

The  British  Commissioners  replied  that  they  could 
not  admit  that  there  had  been  any  violation  of  existing 
principles  of  international  law,  and  that  their  instructions 
did  not  authorize  them  to  accede  to  a  proposal  for  laying 
down  rules  for  the  guidance  of  the  Arbitrator,  but  that 
they  would  make  known  to  their  Government  the  views 
of  the  American  Commissioners  on  the  subject. 

At  the  respective  conferences  on  March  9,  March  10, 
March  13,  and  March  14,  the  Joint  High  Commission 
considered  the  form  of  the  declaration  of  principles  or 
rules  which  the  American  Commissioners  desired  to  see 
adopted  for  the  instruction  of  the  Arbitrator  and  laid 
down  for  observance  by  the  two  Governments  in  future. 

At  the  close  of  the  conference  of  the  14th  of  March, 
the  British  Commissioners  reserved  several  questions 
for  the  consideration  of  their  Government. 

At  the  conference  on  the  5th  of  April  the  British  Com- 
missioners stated  that  they  were  instructed  by  Her 
Majesty's  Government  to  declare  that  Her  Majesty's 
Government  could  not  assent  to  the  proposed  rules  as  a 
statement  of  principles  of  international  law  which  were 
in  force  at  the  time  when  the  Alabama  Claims  arose,  but 
that  Her  Majesty's  Government,  in  order  to  evince  its 
desire  of  strengthening  the  friendly  relations  between 
the  two  countries,  and  of  making  satisfactory  provision 
for  the  future,  agreed  that  in  deciding  the  questions  be- 
tween the  two  countries  arising  out  of  those  claims,  the 
Arbitrator  should  assume  that  Her  Majesty's  Govern- 
ment had  undertaken  to  act  upon  the  principles  set  forth 


386  APPENDIX 

in  the  rules  which  the  American  Commissioners  had 
proposed,  viz.:  — 

[Here  follow  the  Three  Rules  printed  on  page  68,  ante] 

It  being  a  condition  of  this  undertaking  that  these 
obligations  should  in  future  be  held  to  be  binding  inter- 
nationally between  the  two  countries. 

It  was  also  settled  that,  in  deciding  the  matters  sub- 
mitted to  him,  the  Arbitrator  should  be  governed  by  the 
foregoing  rules,  which  had  been  agreed  upon  as  rules  to 
be  taken  as  applicable  to  the  case,  and  by  such  principles 
of  international  law,  not  inconsistent  therewith  as  the 
Arbitrator  should  determine  to  have  been  applicable  to 
the  case. 

The  Joint  High  Commission  then  proceeded  to  con- 
sider the  form  of  submission  and  the  manner  of  constitut- 
ing a  Tribunal  of  Arbitration. 

At  the  conferences  on  the  6th,  8th,  9th,  10th,  and  12th 
of  April  the  Joint  High  Commission  considered  and  dis- 
cussed the  form  of  submission,  the  manner  of  the  award, 
and  the  mode  of  selecting  the  Arbitrators. 

The  American  Commissioners,  referring  to  the  hope 
which  they  had  expressed  on  the  8th  of  March,  inquired 
whether  the  British  Commissioners  were  prepared  to 
place  upon  record  an  expression  of  regret  by  Her  Majesty's 
Government  for  the  depredations  committed  by  the 
vessels  whose  acts  were  now  under  discussion;  and  the 
British  Commissioners  replied  that  they  were  authorized 
to  express,  in  a  friendly  spirit,  the  regret  felt  by  Her 
Majesty's  Government  for  the  escape,  under  whatever 
circumstances,  of  the  Alabama  and  other  vessels  from 
British  ports,  and  for  the  depredations  committed  by 
those  vessels. 


APPENDIX  387 

The  American  Commissioners  accepted  this  expres- 
sion of  regret  as  very  satisfactory  to  them,  and  as  a  token 
of  kindness,  and  said  that  they  felt  sure  it  would  be  so 
received  by  the  Government  and  people  of  the  United 
States. 

In  the  conference  on  the  13th  of  April  the  Treaty 
Articles  i  to  xi  were  agreed  to. 


II 


THE  RESIGNATION  OF  MR.  MEREDITH  AS 
COUNSEL 

WILLIAM  MORRIS  MEREDITH,  of  Philadelphia,  accepted 
the  office  of  Counsel,  5  September,  1871,  and  resigned 
on  account  of  his  health,  17  October,  1871. 

Publicity  having  been  given  to  a  statement  that  the 
real  cause  of  his  resignation  was  a  dissatisfaction  with 
the  Case  (presumably  because  of  the  inclusion  of  the 
"Indirect  Claims")?  it  is  proper  to  say  that  the  statement 
appears  to  have  been  without  foundation.  The  error 
(which  may  easily  be  accounted  for)  deserves  to  be  cor- 
rected, for  this  is  the  sole  instance,  I  believe,  of  a  blemish 
on  the  record  of  those  distinguished  men,  Hamilton  Fish 
and  John  Chandler  Bancroft  Davis,  in  their  arduous  and 
successful  work  of  preparing  the  papers,  and  arranging 
the  documentary  evidence  to  sustain  the  charges  brought 
by  the  United  States  against  the  Government  of  Great 
Britain. 

It  is  reasonably  certain  that  Mr.  Meredith's  with- 
drawal was  due  entirely  to  the  consideration  of  health. 
The  American  Law  Register  for  April,  1907,':contains  the 
following  statement:  — 

"Mr.  Meredith  was  selected  by  General  Grant  as  one  of  the 
Counsel  to  present  and  argue  the  Case  of  the  United  States, 
before  the  Geneva  Tribunal.  He  accepted  the  duty  and  took  an 
active  and  efficient  part  in  the  preparation  of  the  Case  and  of 


APPENDIX  389 

the  briefs  presented.  The  ultimate  decision  of  the  Case  in  favor 
of  the  United  States  is  stated  to  have  been  essentially  upon  the 
basis  of  the  Argument  Mr.  Meredith  prepared.  It  is  certain  he 
strongly  dissented  from  the  portion  of  the  Case  and  Argument 
which  was  overruled  by  the  Tribunal." 

This  is  substantially  an  extract  from  a  paper  read 
before  the  Pennsylvania  Bar  Association,  26  June,  1901, 
by  Richard  L.  Ashhurst.  If  Mr.  Meredith,  as  a  matter 
of  fact,  wrote  a  brief,  I  feel  quite  sure  that  it  was  not 
used  by  our  Counsel  in  Paris,  in  the  preparation  of  the 
Argument. 

Nothing  in  this  statement  indicates  that  Mr.  Meredith 
resigned  because  he  was  dissatisfied  with  the  Case.  In- 
deed, Mr.  Ashhurst  continues:  "It  would  have  been 
almost  too  much  to  hope  that  he  could  in  the  condition 
of  his  health  have  been  able  to  make  the  voyage  and 
conduct  the  argument,  and  his  relinquishment  of  the 
journey  to  Geneva  was  undoubtedly  wise,  though  a 
great  disappointment  to  Pennsylvania." 

The  Honorable  J.  Hubley  Ashton,  formerly  an  Assist- 
ant Attorney-General  of  the  United  States,  and  a  lawyer 
of  distinction  at  Washington,  wrote  to  me,  1  February, 
1901,  just  before  his  death,  on  the  subject  of  Mr.  Mere- 
dith's resignation,  as  follows:  — 

"I  send  you  a  copy  of  the  interesting  paper  of  my  friend 
Ashhurst,  on  William  M.  Meredith,  whom  I  knew  myself  very 
well  in  Philadelphia.  Judge  Black,  who  knew  of  course  all  the 
great  lawyers  of  the  country  in  his  day,  said  to  me  that  Mere- 
dith was  on  the  whole  the  greatest  lawyer  he  had  ever  come  in 
contact  with.  My  own  impression  is  that  he  had  more  genius, 
in  the  general  sense  of  the  term,  than  Mr.  Binney,  who  pre- 
ceded him  in  the  leadership  of  our  Philadelphia  Bar.  I  may 


390  APPENDIX 

mention,  too,  in  this  connection  that  Mr.  Fish  held  him  in  high 
and  affectionate  regard  as  one  of  the  great  leaders  6f  the  old 
Whig  party  of  their  day,  who  had  been  of  incalculable  service 
to  the  country  during  the  War.  There  is  no  difficulty,  therefore, 
in  accounting  for  his  selection  as  one  of  the  Counsel  of  the 
United  States  under  the  Treaty  of  Washington. 

"  It  has  always  been  my  understanding  that  Mr.  Meredith  was 
one  of  the  three  gentlemen  first  chosen  by  the  President, 
through  Mr.  Fish,  no  doubt,  to  represent  the  United  States  as 
its  Counsel  before]  the  Geneva  Tribunal,  and  that'he  was  form- 
ally tendered  the  appointment,  but  was  unable  to  accept  it  on 
account  of  the  state  of  his  health,  which  would  not  permit  him 
to  make  the  proposed  journey  to  Paris,  which  was  to  be  the 
headquarters  of  the  representatives  of  the  Government  in 
Europe.  I  remember  that  he  called  to  see  me,  during  a  visit  to 
Washington,  after  the  ratification  of  the  Treaty  of  Washington; 
and  my  recollection  is  that  I  understood  from  what  he  then  said, 
in  conversation,  that  he  had  declined,  or  would  be  obliged  to 
decline,  the  proposed  service  for  the  reason  I  have  mentioned. 
He  had  never  been  abroad,  and  no  doubt  a  long  sea  voyage  was 
to  him  a  very  formidable  undertaking,  at  that  time  of  his  life, 
and  in  the  infirm  condition  of  his  health,  especially  as  it  was 
uncertain  how  long  he  might  be  obligedjto  remain  in  Europe, 
away  from  his  family  and  home.  I  remember  that  I  was  ex- 
tremely sorry  to  hear  what  he  said  in  that  conversation,  es- 
pecially, perhaps,  as  I  had  been  particularly  anxious,  quite 
early,  that  he,  as  the  great  lawyer  of  Philadelphia,  should  not 
be  overlooked  by  Mr.  Fish  and  the  President,  when  the  time 
came  to  select  our  Counsel  in  the  case  against  Great  Britain. 

"  Mr.  Ashhurst  states,  as  I  understand  his  paper,  that  Mr. 
Meredith  in  fact  acted  as  one  of  the  Counsel  in  the  Case, 
at  home;  but  I  was  not  aware  of  that  at  the  time  of  the  Arbitra- 
tion. 

"  My  friend,  Chief  Justice  Mitchell,  of  Pennsylvania,  in  an 
address  he  delivered  in  commemoration  of  the  Centennial  of 


APPENDIX  391 

the  Law  Association  of  Philadelphia,  a  year  or  so  ago,  stated 
that  Mr.  Meredith  at  first  accepted  the  appointment  tendered 
to  him  by  the  President,  and  afterwards  declined  it,  owing  to 
his  dissatisfaction  with  the  Case  as  prepared  for  the  United 
States;  but  I  do  not  think  that  can  be  an  entirely  correct  ac- 
count of  his  action  in  respect  to  the  matter,  and  it  seems  to  be 
inconsistent  with  what  Mr.  Ashhurst  states  in  his  Memoir. 

"  I  understood  from  what  Judge  Curtis  said  to  me,  at  the 
time,  that  he  was  obliged  to  decline  the  proposed  service  on 
account  of  his  prior  professional  engagements,  especially  in  the 
Supreme  Court,  which  could  not  be  disregarded,  or  arranged  for 
satisfactorily  to  himself  and  his  clients." 

Mr.  Ashton  was  in  a  position  to  know  the  facts;  and 
the  accuracy  of  his  recollection  will  not  for  a  moment  be 
questioned  by  any  one  who  ever  knew  him.  A  diligent 
search  has  been  made  at  the  Department  of  State  for  the 
original  letter  of  Mr.  Meredith  of  17  October,  1871  (for 
which  I  thank  the  several  officials) ,  but  it  cannot  be  found. 

I  am  happy  to  testify  that  my  friend,  the  Chief  Justice 
of  Pennsylvania,  has  generously  been  at  great  pains  to  go 
into  the  subject  anew,  in  the  hope  of  reaching  the  exact 
truth  in  the  premises.  I  quote  from  his  letter  to  me 
of  27  November,  1907:  — 

"I  have  seen  Mr.  Ashhurst,  and  learned  from  him  that  his 
statement  in  regard  to  Mr.  Meredith  was  based  on  information 
from  Mr.  Meredith's  family,  particularly  his  nephew,  the  late 
Cadwalader  Biddle.  On  reading  what  he,  Mr.  Ashhurst,  said,  I 
find  that  he  does  not  put  the  matter  as  strongly  as  I  did,  though 
he  agrees  with  me  that  that  was  the  general  belief  of  the  Bar  at 
the  time.  I  find  also  that  he  gives  the  condition  of  Meredith's 
health  more  weight  than  I  was  disposed  to.  I  had  supposed 
that  Mr.  Meredith  was  merely  asthmatic,  but  it  seems  that  he 
had  serious  cardiac  trouble  and  tendency  to  dropsy. 


392  APPENDIX 

"It  does  not  seem  possible  now  to  get  any  further  light  on 
the  matter,  and  your  suggestion  of  the  reasons  for  Meredith's 
action  is  probably  the  best,  and  certainly  the  safest,  that  can 
now  be  made." 


Ill 


ANNOUNCEMENT  BY  THE  TRIBUNAL  19  JUNE  1872 
IN  RESPECT  TO  THE  INDIRECT  CLAIMS 4 

THE  application  of  the  Agent  of  Her  Britannic  Majesty's 
Government  being  now  before  the  Arbitrators,  the  Pre- 
sident of  the  Tribunal  (Count  Sclopis)  proposes  to  make 
the  following  communication  on  the  part  of  the  Arbi- 
trators to  the  parties  interested :  — 

The  Arbitrators  wish  it  to  be  understood  that,  in  the 
observations  which  they  are  about  to  make,  they  have  in 
view  solely  the  application  of  the  Agent  of  Her  Britannic 
Majesty's  Government,  which  is  now  before  them  for  an 
adjournment,  which  might  be  prolonged  till  the  month 
of  February  in  next  year;  and  the  motives  for  that 
application,  viz.,  the  difference  of  opinion  which  exists 
between  Her  Britannic  Majesty's  Government  and  the 
Government  of  the  United  States,  as  to  the  competency 
of  the  Tribunal,  under  the  Treaty  of  Washington,  to  deal 
with  the  claims  advanced  in  the  case  of  the  United  States 
in  respect  of  losses  under  the  several  heads  of  —  1st, 
"The  losses  in  the  transfer  of  the  American  commercial 
marine  to  the  British  flag" ;  2d,  "The  enhanced  payments 
of  insurance";  and  3d,  "  The  prolongation  of  the  war, 
and  the  addition  of  a  large  sum  to  the  cost  of  the  war  and 
the  suppression  of  the  rebellion" ;  and  the  hope  which  Her 
Britannic  Majesty's  Government  does  not  abandon,  that 
1  Gen.  Arb.,  vol.  iv,  pp.  19-20. 


394  APPENDIX 

if  sufficient  time  were  given  for  that  purpose,  a  solution 
of  the  difficulty  which  has  thus  arisen,  by  the  negotiation 
of  a  Supplementary  Convention  between  the  two  Gov- 
ernments, might  be  found  practicable. 

The  Arbitrators  do  not  propose  to  express  or  imply  any 
opinion  upon  the  point  thus  in  difference  between  the 
two  Governments  as  to  the  interpretation  or  effect  of  the 
Treaty;  but  it  seems  to  them  obvious  that  the  substan- 
tial object  of  the  adjournment  must  be  to  give  the  two 
Governments  an  opportunity  of  determining  whether 
the  claims  in  question  shall  or  shall  not  be  submitted  to 
the  decision  of  the  Arbitrators,  and  that  any  difference 
between  the  two  Governments  on  this  point  may  make 
the  adjournment  unproductive  of  any  useful  effect,  and, 
after  a  delay  of  many  months,  during  which  both  nations 
may  be  kept  in  a  state  of  painful  suspense,  may  end  in 
a  result  which,  it  is  to  be  presumed,  both  Governments 
would  equally  deplore,  that  of  making  this  Arbitration 
wholly  abortive.  This  being  so,  the  Arbitrators  think  it 
right  to  state  that,  after  the  most  careful  perusal  of  all 
that  has  been  urged  on  the  part  of  the  Government  of 
the  United  States  in  respect  of  these  claims,  they  have 
arrived,  individually  and  collectively,  at  the  conclusion 
that  these  claims  do  not  constitute,  upon  the  principles 
of  international  law  applicable  to  such  cases,  good  found- 
ation for  an  award  of  compensation  or  computation  of 
damages  between  nations,  and  should,  upon  such  prin- 
ciples, be  wholly  excluded  from  the  consideration  of  the 
Tribunal  in  making  its  award,  even  if  there  were  no  dis- 
agreement between  the  two  Governments  as  to  the 
competency  of  the  Tribunal  to  decide  thereon. 

With  a  view  to  the  settlement  of  the  other  claims  to  the 


APPENDIX  395 

consideration  of  which  by  the  Tribunal  no  exception  has 
been  taken  on  the  part  of  Her  Britannic  Majesty's  Gov- 
ernment, the  Arbitrators  have  thought  it  desirable  to  lay 
before  the  parties  this  expression  of  the  views  they  have 
formed  upon  the  question  of  public  law  involved,  in  order 
that  after  this  declaration  by  the  Tribunal  it  may  be 
considered  by  the  Government  of  the  United  States 
whether  any  course  can  be  adopted  respecting  the  first- 
mentioned  claims  which  would  relieve  the  Tribunal  from 
the  necessity  of  deciding  upon  the  present  application 
of  Her  Britannic  Majesty's  Government. 


IV 

MR.   RHODES  ON  THE  ALABAMA   CLAIMS 

(From  The  Nation  of  January  31,  1907.) 

To  THE  EDITOR  OF  THE  NATION:  — 

SIR:  The  completion  by  James  Ford  Rhodes  of  "The 
History  of  the  United  States  from  the  Compromise  of 
1850  to  the  Final  Restoration  of  Home  Rule  at  the  South 
in  1877  "  is  an  event  of  no  small  import  in  the  annals  of 
American  historical  achievements.  The  author,  as  we  all 
know,  is  painstaking  and  impartial,  and  his  work  bids 
fair  to  continue  long  as  the  accepted  authority  for  its 
period.  Mr.  Rhodes  frankly  says  that  the  critics  of  his 
earlier  volumes  have  been  helpful  to  him  in  making  cor- 
rections. Whoever,  therefore,  discovers  an  error  in  his 
pages  feels  encouraged  to  point  it  out. 

Thus  I  venture  to  comment  on  one  or  two  statements, 
in  the  chapter  of  volume  vi  devoted  to  the  Alabama 
Claims  and  the  action  of  the  United  States  in  1872  before 
the  Tribunal  of  Arbitration  at  Geneva.  Mr.  Rhodes 
seems  to  have  done  injustice,  unwittingly,  of  course,  to 
an  eminent  man  whose  public  service  has  long  entitled 
him  to  grateful  recognition  and  high  praise.  I  refer  to 
the  Hon.  John  Chandler  Bancroft  Davis  (still  living  in 
Washington,  at  an  advanced  age),  formerly  Assistant 
Secretary  of  State  and  Agent  of  the  United  States  at 
Geneva,  then  our  Minister  to  Germany,  subsequently  a 
Judge  of  the  Court  of  Claims,  and  not  long  ago  Reporter 
of  the  Supreme  Court  of  the  United  States.  Only  three 


APPENDIX  397 

men  now  survive  of  the  American  party  in  attendance 
at  Geneva  during  the  summer  of  1872  —  Bancroft  Davis, 
Brooks  Adams,  and  myself.  From  a  distinct  recollection 
of  what  occurred  during  those  memorable  months  at 
Paris  and  Geneva,  and  from  a  fairly  accurate  knowledge 
of  the  persons  who  participated  in  that  great  interna- 
tional lawsuit,  I  feel  authorized  to  speak,  both  as  to  the 
character  of  the  steps  taken  by  the  two  Governments 
and  as  to  the  labor  performed  by  their  representatives. 
I  discuss  this  matter  in  the  columns  of  The  Nation,  in- 
stead of  addressing  a  private  letter  to  the  author  himself, 
for  the  reason  that  it  is  but  fair  that  the  effect  of  his 
animadversions  should  be  counteracted,  so  far  as  possible, 
in  a  circle  of  readers  interested  in  the  truth  of  history. 

Lack  of  space  forbids  quoting  Mr.  Rhodes  at  length, 
or  pointing  out  all  the  instances  in  which  his  narrative 
treats  unfairly  our  Agent  at  Geneva.  The  following  ex- 
tract is  from  page  364 :  — 

"The  document  entitled  'The  Case  of  the  United  States' 
is  not  one  for  an  American  to  be  proud  of.  It  harped  on  the 
concession  of  belligerent  rights  to  the  Confederacy,  and  stated 
what  was  untrue  when  it  said  that  'Her  Majesty's  Government 
was  actuated  at  that  time  by  a  conscious  unfriendly  purpose 
towards  the  United  States.'  This  occurs  in  the  first  chapter 
entitled,  '  The  Unfriendliness  of  Great  Britain/  wherein  much 
that  is  true  is  irrelevant  and  discourteous." 

This  is  a  serious  indictment.  Whether  the  "Case"  be 
in  truth  a  document  for  an  American  to  be  proud  of  is,  to 
be  sure,  a  matter  of  opinion.  Bancroft  Davis  wrote  every 
word  of  that  document.  So  far  as  perfect  clearness  of 
statement  and  felicity  of  expression  are  concerned,  "The 
Case  of  the  United  States"  may  be  pronounced  almost 


398  APPENDIX 

faultless.  That  it  more  than  met  public  expectation  at 
the  time  is  evident  from  the  letters  of  approval  and 
thanks  that  poured  in  upon  the  Agent  of  the  United 
States  from  prominent  men  —  lawyers,  merchants, 
authors,  and  the  like  —  in  various  parts  of  the  country. 
Americans  in  that  day  were  proud  of  the  "Case."  Says 
that  most  competent  critic,  Caleb  Gushing:  — 

"  It  was  my  opinion  on  reading  the  American  Case  for  the  first 
time,  and  it  is  my  opinion  now,  that  it  is  not  only  a  document 
of  signal  ability,  learning,  and  forensic  force,  —  which  indeed 
everybody  admits,  —  but  it  is  also  temperate  in  language  and 
dignified  in  spirit,  as  becomes  any  State  paper  which  is  issued 
in  the  name  of  the  United  States.  .  .  .  The  facts  are  pertinent; 
its  reasonings  are  cogent;  its  conclusions  are  logical." l 

In  a  word,  the  "Case"  met  the  need  of  a  vigorous  asser- 
tion of  our  rights,  hi  terms  diplomatic  and  courteous.  If 
it  "harped"  on  the  concession  of  belligerent  rights,  it 
must  be  confessed  that  the  Counsel  for  the  United  States 
(Messrs.  Cushing,  Evarts,  and  Waite)  kept  up  the  harp- 
ing in  their  Argument.2 

Mr.  Rhodes  further  appears  to  be  laboring  under  some 
misapprehension  in  imagining  that  Mr.  Davis  wrote  what 
he  knew  (or  ought  to  know)  was  untrue.  It  was  the  duty 
of  the  Agent  of  the  United  States  to  bring  to  the  attention 
of  the  neutral  Arbitrators  the  fact  of  the  existence  of 
unfriendly  feeling  on  the  part  of  the  English  Government. 
It  is  nothing  to  the  point  that  labored  attempts  of  to-day 
are  undertaking  to  show  that  the  people  of  the  United 
States  were  mistaken  as  to  the  spirit  animating  the  gov- 
erning powers  of  England  during  the  dark  hours  of  the 

1  Treaty  of  Washington  (1873),  p.  31. 
8  Gen.  Arb.,  vol.  iii,  pp.  10-11. 


APPENDIX  399 

war.  Such  attempts  may  succeed  in  proving  that  our 
feelings  caused  us  to  exaggerate  somewhat  the  extent  of 
that  unfriendliness.  But  nothing  can  now  be  brought 
forward  to  shake  the  convictions  established  in  those 
days,  after  deep  regret,  in  the  minds  of  all  friends  of  the 
Union. 

As  to  the  charge  of  discourtesy,  perhaps  the  best  reply 
is  the  terse  remark  of  M.  Moreau,  of  Paris,  a  distinguished 
member  of  the  French  Bar.  After  he  had  read  the  "  Case," 
in  the  French  version,  he  quietly  observed  to  our  Agent: 
"Vos  paroles  sont  douces;  mais  vos  faits  sont  brutaux." 
No  one  who  has  ever  known  Bancroft  Davis  can  for  a 
moment  imagine  him  to  have  been  guilty  of  discourtesy 
in  any  relation  of  life.  Moreover,  the  charge  finds  no 
justification  in  the  pages  of  the  American  Case. 

"These  objectionable  statements  and  arguments  of 
Bancroft  Davis,  so  far  as  I  have  been  able  to  discover," 
continues  Mr.  Rhodes,  "did  not  in  the  least  strengthen 
our  cause."  Yet  some  time  after  the  Tribunal  had  finally 
adjourned,  Count  Sclopis,  upon  being  pressed  for  an 
answer  to  the  inquiry,  what  was  it  that  gained  the  award, 
replied:  "The  Case  prepared  by  Mr.  Davis.  It  was  that 
which  won  the  cause."  The  President  of  the  Tribunal 
spoke  the  literal  truth. 

On  the  day  appointed  by  the  Treaty,  the  United  States 
laid  before  the  Tribunal  a  clear,  explicit,  and  strong 
statement  of  facts  —  an  exposition  of  the  duty  of  Eng- 
land, and  of  her  failure  to  perform  that  duty;  a  list  of  the 
acts  and  omissions  on  the  part  of  English  officials,  to- 
gether with  proof  of  oft-repeated  expressions  from  those 
in  authority,  declaring  their  sympathy  for  the  success  of 
the  Southern  Confederacy.  The  story  was  told  calmly, 


400  APPENDIX 

and  without  embellishment,  yet  with  a  cogency  and  force, 
from  the  effect  of  which  there  could  be  no  escape.  It  was 
this  superb  marshalling  of  the  facts  that  convinced  the 
Arbitrators  of  the  justice  of  the  American  cause. 
Mr.  Rhodes  says  further:  — 

"  But  chapter  I  was  not  the  worst  feature  in  the  Case  of  the 
United  States.  Chapters  i-v  were  submitted  for  advice  to 
President  Woolsey,  Judge  Hoar,  Caleb  Gushing,  and  Hamilton 
Fish,  but  in  chapter  vi  Bancroft  Davis  gave  himself  a  free 
hand,  and  almost  wrecked  the  Arbitration.  He  revived  the 
national  or  indirect  claims,"  etc. 

The  charge  that  Bancroft  Davis  "almost  wrecked  the 
Arbitration"  is  entirely  wide  of  the  mark.  If  the  clamor 
in  the  English  press  consequent  upon  the  discovery  that 
the  American  Case  did  not  ignore  the  "indirect  claims,'* 
had  resulted  in  a  breakdown  at  Geneva,  because  of  a 
refusal  by  England  to  proceed  with  the  Arbitration,  the 
American  Agent  could  not  have  been  held  in  the  least 
accountable.  The  President  had  directed  Mr.  Davis  to 
prepare  the  Case.  This  labor  Mr.  Davis  performed.  He 
included  among  "all  the  claims"  (to  use  the  words  of  the 
Treaty),  the  indirect  claims,  "in  the  exact  language  of  the 
protocol." 

To  judge  from  the  extract  just  quoted,  one  would  sup- 
pose that  Bancroft  Davis,  in  drafting  chapter  vi,  had 
acted  solely  upon  his  own  responsibility.  Mr.  Rhodes 
evidently  believes  such  to  be  the  fact.  The  truth  is,  so 
far  from  giving  himself  "a  free  hand,"  Mr.  Davis  acted 
immediately  under  the  eye  of  his  chief.  The  American 
Case  was  submitted  to  Mr.  Fish,  who  read  it  through 
from  beginning  to  end,  and  approved  it  in  its  entirety. 


APPENDIX  401 

The  Secretary  of  State  and  the  Assistant  Secretary  acted 
in  perfect  official  harmony. 

When  put  to  the  test  Mr.  Davis  had  the  courage  to 
assume  any  burden  that  it  had  become  his  duty  to  as- 
sume. It  was  the  tact  and  the  stamina  of  Bancroft  Davis 
that  in  the  presence  of  danger  actually  rescued  the  Treaty 
from  failure.  The  world  may  never  know  how  large  a 
measure  of  credit  is  due  to  the  sagacity  and  the  nerve  of 
both  Lord  Tenterden  and  Bancroft  Davis.  Happily  for 
England  and  for  the  United  States,  these  two  men  be- 
lieved each  in  the  other.  Mutual  confidence  and  a  unity 
of  purpose  enabled  the  Englishman  and  the  American  to 
work  together  in  preparing  a  way  by  which  the  "indirect 
claims"  could  honorably  be  disposed  of ,  and  the  Treaty 
saved.  After  these  two  men,  upon  their  own  responsibil- 
ity, had  struck  hands,  it  was  agreed  that  Mr.  Davis 
should  ask  Mr.  Adams  to  take  the  open  and  visible  step 
leading  to  action  by  the  Tribunal.  Mr.  Adams  acted  with 
equal  skill.  The  disposition  that  was  thereupon  made  of 
the  subject-matter  which  had  threatened  a  rupture  of  the 
Treaty,  has  now  become  familiar  history.  The  great 
principle  was  then  and  there  settled  of  the  extent  to 
which,  in  time  of  war,  a  neutral  Government  is  liable  for 
failure  to  observe  its  obligations  to  either  belligerent.  It 
was  this  initiative  act,  the  honor  of  which  belongs  equally 
to  the  respective  Agents,  that  constitutes  the  crowning 
merit  of  Bancroft  Davis's  inestimable  services  to  his 
country. 

The  foregoing  observations  have  been  submitted  from 
no  spirit  of  controversy,  but  only  that  this  chapter  in  our 
national  affairs  may  be  accurately  viewed.  I  believe  that 
our  foremost  historian  will  gladly  apply  himself  anew  to 


402  APPENDIX 

the  study  of  these  events  in  order  to  ascertain  whether, 
because  of  imperfect  data,  this  first  sketch  by  him  of  the 
Treaty  of  Washington,  and  the  Tribunal  of  Arbitration, 
does  not  in  some  particulars  need  revision. 

FRANK  WARREN  HACKETT. 
WASHINGTON,  January  24,  1907. 

The  publication  of  this  letter  brought  a  frank  and 
courteous  reply  from  Mr.  Rhodes,  then  sojourning  at 
Rome;  and  led  at  his  request  to  a  correspondence,  in  the 
course  of  which  the  historian  expressed  his  intention  to 
bestow  further  study  upon  the  subject  upon  his  arrival 
home,  with  a  view  of  modifying  his  statement,  should  it 
seem  right  to  do  so. 

Inasmuch  as  the  reader  may  have  this  volume  of 
Rhodes  ;s  History  in  his  library,  I  have  thought  it  advis- 
able, instead  of  alluding  to  the  subject  in  my  text,  to 
reprint  the  letter  here.  I  take  this  occasion  to  thank  Mr. 
Rhodes  for  the  consideration  he  has  shown  me;  and  for 
the  kindly  terms  in  which  he  has  declared  his  purpose  of 
correcting  his  text,  if  he  shall  discover  that  the  truth 
requires  it. 


THE  INDIRECT  CLAIMS  AND  THE  COSTS  OF 
PURSUIT 

THE  Secretary  of  State,  his  special  representative,  the 
Agent  of  the  United  States,  and  the  lawyers  who  acted  as 
Counsel  for  the  United  States  were  all  charged  with  a 
duty  of  a  twofold  character.  First,  to  obtain  reparation 
in  money  for  injuries  inflicted  upon  the  United  States 
and  its  citizens  by  reason  of  the  wrongful  conduct  of  the 
English  Government;  and,  while  so  recovering  judgment 
against  England,  to  have  "all  complaints  and  claims  on 
the  part  of  the  United  States,"  generically  known  as  the 
Alabama  Claims,  adjusted.  Second,  to  have  a  careful  eye 
to  the  future,  and  to  make  sure  that  in  the  ardor  of  con- 
test they  did  not  go  too  far  in  pressing  their  demands, 
lest  the  decision  of  the  Tribunal  render  more  onerous  than 
theretofore  the  restrictions  and  obligations  which  the 
United  States  would  be  bound  to  observe  as  a  neutral;  or 
subject  the  United  States  to  the  danger  of  being  held 
responsible  in  damages  beyond  what  they  previously  had 
admitted  to  be  just  and  reasonable. 

Mr.  Fish  wisely  observed:  "It  is  not  the  interest  of  a 
country  situate  as  are  the  United  States,  with  their  large 
extent  of  seacoast,  a  small  Navy,  and  smaller  internal 
police,  to  have  it  established  that  a  nation  is  liable  in 
damages  for  the  indirect,  remote,  or  consequential  re- 
sults of  a  failure  to  observe  its  neutral  duties.  This 
Government  expects  to  be  in  the  future,  as  it  has  been  in 


404  APPENDIX 

the  past,  a  neutral  much  more  of  the  time  than  a  bel- 
ligerent." 1  This  consideration  our  representatives  at 
Geneva  bore  constantly  in  mind.  The  United  States 
were  not  seeking  a  merely  temporary  triumph.  Secre- 
tary, Agent,  and  Counsel  alike  were  exercising  a  larger 
vision. 

That  the  Arbitrators  awarded  a  substantial  sum  to  be 
paid  to  the  United  States  for  the  satisfaction  of  all  the 
claims  is  proof  that  our  Agent  and  Counsel  ably  per- 
formed their  duty  in  the  first  particular  named.  .The 
President  expressed  to  Mr.  Davis,  to  the  Counsel,  and  to 
the  other  gentlemen  engaged  at  Geneva  "his  thanks  and 
high  appreciation  of  the  great  ability,  learning,  labor,  and 
devotion  to  the  interests,  the  dignity,  and  honor  of  the 
nation  which  each  in  his  appropriate  sphere  has  made  so 
successfully  conducive  to  the  very  satisfactory  result 
which  has  been  reached."  2  Nor  is  this  the  mere  compli- 
mentary language  of  an  official  routine.  I  have  reason 
to  know  that  Mr.  Fish,  who  is  here  speaking  for  the 
President,  was  privately  generous  in  his  praise  to  indi- 
viduals; and  especially  so  to  his  friend,  Mr.  Bancroft 
Davis,  in  whom  he  had,  with  such  good  reason,  implicitly 
trusted.  • 

As  regards  the  second  part  of  the  duty  in  question,  we 
perceive  that  the  outcome  of  their  judicious  conduct  was 
that  an  expression  of  opinion  was  obtained  from  the 
Tribunal  that  certain  claims  for  indirect  or  remote  losses, 
growing  out  of  the  depredations  of  a  cruiser  on  the  ocean, 
were  decided  to  be  non-admissible,  in  a  cause  where  a 
belligerent  complains  of  a  neutral  for  neglect  in  not  pre- 

1  Fish  to  Schenck,  23  April,  1872,  Gen.  Art.,  vol.  ii,  p.  476. 
*  Gen.  Arb.,  vol.  iv,  p.  545. 


APPENDIX  405 

venting  the  escape  of  that  cruiser;  that  a  demand  for 
compensation  cannot  be  successfully  maintained  under 
the  principles  of  international  law.  The  gravity  of  this 
announcement  by  so  authoritative  a  tribunal  as  that  at 
Geneva  is  obvious. 

Here  we  may  fitly  pass  under  review  the  language  of  a 
commentator  on  this  last-named  decision  of  the  Arbitra- 
tors, —  one  to  whose  utterances  unusual  weight  is  due, 
not  less  from  his  familiarity  with  the  subject-matter  than 
because  of  his  learning  and  his  long  experience  in  the 
domain  of  international  law.  I  refer  to  Mr.  Caleb  Gush- 
ing's  exposition  in  his  book,  "  The  Treaty  of  Washing- 
ton/ ' 1  under  the  sub-title,  "Review  of  the  Decision  of 
the  Tribunal  on  National  Losses." 

Of  the  announcement,  19  June,  1872,  that  removed 
from  the  field  of  contention  the  indirect  claims  (popularly 
so  called),  Mr.  Gushing  had  remarked  that  the  Arbitra- 
tors had  suggested  no  distinction  between  the  direct  and 
the  indirect  claims  in  their  declaration,  but  that  their 
omission  to  state  reasons  for  their  declaration  was  subse- 
quently supplied.2  Mr.  Gushing  means  that  when  they 
came  to  pass  upon  a  claim  of  indemnity  for  the  costs  of 
pursuit  of  Confederate  cruisers,  they  rejected  it,  saying 
that  these  costs  "  are  not,  in  the  judgment  of  the  Tribunal, 
properly  distinguishable  from  the  general  expenses  of  the 
war  carried  on  by  the  United  States." 

Before  quoting  the  comments  of  this  eminent  jurist 
upon  this  language  of  the  Tribunal,  let  a  single  word  be 
introduced  with  regard  to  the  decision  itself  upon  the 
claim  proffered  by  the  United  States  for  the  costs  of  pur- 

1  The  Treaty  of  Washington,  p.  153. 

2  Ibid.,  p.  71. 


406  APPENDIX 

suit  of  the  cruisers,  a  decision  reached  by  a  vote  of  three 
to  two.  Mr.  Staempfli  and  Mr.  Adams  declared  the 
claims  to  be  admissible,  as  belonging  to  the  direct  losses.1 
These  two  Arbitrators  reserved  to  appreciate  the  amount 
of  the  losses  according  to  the  bases  laid  down  in  the  table 
(at  page  120  of  the  Seventh  Volume  of  the  Appendix  to  the 
Case  of  the  United  States).  It  is  difficult  to  see  wherein 
the  conclusion  reached  by  the  Swiss  and  American  Arbi- 
trators is  not  the  logically  sound  one. 
What  were  the  facts? 

The  United  States  contended  that  the  Confederates 
id  no  navy  on  the  ocean,  and  no  means  of  putting  one 
tere,  save  through  the  neglectful  conduct  of  the  English 
government.  England  was  their  dockyard.  That  upon 
the  receipt  of  news  that  private  property  was  being  de- 
stroyed, it  became  the  duty  of  the  Government  of  the 
United  States  to  make  every  possible  effort  to  search  for 
and  capture  the  depredating  cruiser.  That  the  Govern- 
ment did  proceed  regularly  to  equip  and  send  forth  in 
pursuit  of  the  several  cruisers  a  fleet  of  armed  steam- 
vessels;  that  this  was  carried  on  as  a  distinct  branch  of 
naval  operations.  That  most  of  the  ships  so  ordered  to 
search  for  the  Confederate  cruisers  constituted  just  that 
much  of  a  reduction  from  forces  that  could  be  employed 
in  blockade  duty,  or  from  service  in  capturing  positions 
on  the  coast  held  by  the  enemy. 

The  Navy  Department  had  prepared  tables,  showing  a 
list  of  the  vessels  so  despatched,  together  with  the  items 
of  charge  incurred  for  equipping  and  for  maintenance. 
The  total  of  this  expenditure  aggregated  a  little  more 
than  seven  millions  of  dollars.  This  sum  included  the 
1  Gen.  Arb.,  vol.  Iv,  p.  43. 


APPENDIX  407 

estimated  value  of  one  or  two  vessels  of  the  United  States 
that  had  been  captured  (the  Hatteras  was  sunk  by  the 
Alabama)  and  two  barks  taken  while  under  charter, 
carrying  coal  belonging  to  the  United  States.  The  figures 
were  perhaps  open  to  criticism  in  some  instances;  but 
that  a  large  sum  was  expended  by  the  Government  sole- 
ly for  the  purpose  of  protecting  the  commerce  of  the 
United  States  by  ridding  the  ocean  of  these  cruisers,  not 
a  dollar  of  which  expenditure  would  have  been  needful 
but  for  their  escape  from  English  ports,  is  not  open  to 
doubt. 

It  would  seem,  therefore,  that  the  real  question  pre- 
sented was,  Is  the  loss  thus  sustained  by  the  United 
States  a  loss  directly  resulting  from  the  presence  of  the 
cruisers  upon  the  ocean? 

So  far  as  concerns  the  vessels  actually  captured  or 
sunk,  the  loss  seems  to  be  in  no  wise  different  from  that 
of  vessels  owned  by  private  persons,  —  citizens  of  the 
United  States.  Is  the  cost  to  which  the  United  States 
was  subjected  in  order  to  capture  (if  possible)  the  Con- 
federate cruiser  a  direct  loss  to  the  people  of  the  United 
States?  That  is  to  say,  Did  the  cruiser  cause  the  ex- 
penditure? Or,  were  there  intervening  causes  of  a  char- 
acter to  render  these  expenditures  a  remote  or  indirect 
loss?  There  would  seem  to  be  but  one  answer.  True,  the 
expenditure  was  a  part  of  the  expenses  of  the  war.  Was 
it,  or  not,  distinct  from  the  general  expenses  of  the  war, 
so  that  it  can  fairly  be  said  that  the  cause  of  these  partic- 
ular expenditures  was  the  neglect  of  the  English  Govern- 
ment in  not  preventing  these  ships  from  leaving  port? 
For  myself,  I  am  unable  to  perceive  the  difference  be- 
tween the  loss  of  the  cargoes  of  coal  belonging  to  the 


408  APPENDIX 

United  States  and  the  loss  of  private  property.  Upon 
the  whole  question  I  am  brought  to  the  conclusion  that 
the  costs  of  pursuit  constituted  a  direct  loss,  capable  of 
a  fairly  exact  computation,  and  that  Great  Britain 
should  have  been  held  to  respond  in  damages  therefor. 

I  concede,  of  course,  that  Great  Britain  could  have 
been  held  liable  only  where  the  costs  of  pursuit  were  di- 
rectly traceable  to  the  presence  on  the  ocean  of  a  particu- 
lar cruiser,  in  respect  to  whose  sailing  that  country  had 
previously  been  found  responsible  in  damages.  If  a  ship 
of  the  United  States  Navy  had  been  sent  out  to  intercept 
the  Georgia,  for  instance,  and  not  the  Alabama,  etc.,  it 
may  be  granted  that  no  liability  for  such  expenditure  is 
proved.  But  the  principle  remains,  I  submit,  that  in  the 
case  of  the  several  cruisers  for  whose  depredations  Great 
Britain  was  held  liable,  the  costs  of  pursuit  were  direct 
losses  sustained  by  the  United  States,  and  as  such  they 
formed  a  valid  ground  for  indemnity. 

The  text  of  the  Tribunal's  decision  is  brief.  "The 
costs  of  pursuit  of  the  Confederate  cruisers  are  not  in  the 
judgment  of  the  Tribunal  properly  distinguishable  from 
the  general  expenses  of  the  war  carried  on  by  the  United 
States."  If  these  words  are  to  be  taken  as  meaning  that 
the  costs,  as  they  appear  in  proof,  are  not  capable  of  being 
segregated,  and  passed  upon  as  a  distinct  class  of  expendi- 
tures, the  assumption  is  evidently  erroneous.  I  conceive 
that  what  the  language  of  the  decision  really  signifies  is, 
that,  in  the  opinion  of  the  majority,  the  costs  of  pursuit 
are  war  expenditures;  and,  therefore,  are  not  to  be  re- 
garded as  other  than  the  usual  expense  which  war  entails 
upon  a  Government;  they  are  not  open  to  be  examined 
further,  or  to  be  traced  to  any  special  cause.  This  inter- 


APPENDIX  409 

pretation  is  at  least  intelligible;  but,  with  all  due  respect, 
let  me  say  that  it  does  not  seem  logical.  The  expenditure 
is  distinguishable  in  fact.  Does  the  Tribunal  decide  that 
the  loss  is  an  indirect  loss?  There  is  reason  to  argue  that 
it  does,  since  the  dissenting  Arbitrators  take  pains  to 
pronounce  it  a  direct  loss. 

No  great  aid  upon  this  interesting  point  appears  to 
have  been  rendered  the  Tribunal  by  the  Arguments  of  the 
contending  parties.  The  United  States  contented  itself 
with  characterizing  the  claim  as  one  for  a  direct  loss,  and 
said  little  else,  as  if  nothing  further  were  needed  to  be 
said.1  The  British  Counter-Case  pronounced  it  "an  un- 
heard-of demand."  Neither  side  can  be  said  seriously  to 
have  attempted  a  discussion  of  the  claim  upon  principle. 
Three  or  four  pages  of  the  British  Counter-Case,  it  is  true, 
are  devoted  to  its  consideration;  but  what  is  there  pre- 
sented amounts  to  little  more  than  a  contention  that  it  is 
not  possible  to  contest  the  validity  of  such  claims,  — not 
possible  to  find  out  how  much  was  in  fact  expended. 
After  protesting  a  natural  reluctance  to  criticise  the 
management  of  the  United  States  Navy,  the  Counter- 
Case  goes  on  to  do  this  very  thing,  somewhat  in  detail, 
observing  that  "it  appears  extraordinary  that  more 
energy  was  not  displayed  in  pursuing,  etc."  A  hint  is 
virtually  thrown  out  that  the  British  Navy  would  have 
been  far  more  effective,  at  a  much  less  expense.2 

The  British  Argument,  it  is  well  to  bear  in  mind,  actu- 
ally set  up  the  defence  that  the  destruction  of  private 
property  of  American  citizens  on  the  high  seas  was  an 
indirect  loss,  so  far  as  the  neutral  nation  was  concerned, 

1  Gen.  Arb.,  vol.  iii,  p.  216. 
1  Ibid.,  vol.  ii,  pp.  388-91. 


410  APPENDIX 

and  that  it  furnished  no  ground  for  demanding  an  in- 
demnity. 

It  is  to  be  regretted  that  the  principle  involved  in  the 
question  of  costs  of  pursuit  was  not  fully  argued.  Had  it 
been,  the  decision  of  the  Tribunal  might  perhaps  have 
been  expressed  in  terms  less  open  to  misconception. 

But  to  Mr.  Gushing.  He  remarks: l — 

"The  Arbitrators  had  to  pass  on  a  claim  of  indemnity  for  the 
costs  of  pursuit  of  Confederate  cruisers  by  the  Government;  — 
a  claim  admitted  to  be  within  the  jurisdiction  of  the  Tribunal, 
and  which  the  Tribunal  rejects  on  the  ground  that  such  costs 
1  are  not,  in  the  judgment  of  the  Tribunal,  properly  distinguish- 
able from  the  general  expenses  of  the  war  carried  on  by  the 
United  States/ 

"  Here  the  major  premise  is  assumed  as  already  determined 
or  admitted,  namely,  that  the  general  expenses  of  the  war  are 
not  to  be  made  the  subject  of  award.  Why  not  ?  Because  such 
expenses  are  in  the  nature  of  indirect  losses  ?  No  such  notion 
is  intimated.  Because  the  claim,  as  being  for  indirect  losses, 
is  not  within  the  purview  of  the  Treaty  ?  That  is  not  said  or 
implied.  Because  such  a  claim  is  beyond  the  jurisdiction  of  the 
Tribunal  ?  No;  for  the  Tribunal  takes  jurisdiction  and  judges 
in  fact.  The  question  then  remains,  Why  is  a  claim  for  losses 
pertaining  to  the  general  expenses  of  the  war  to  be  rejected  ?" 

Now,  does  it  not  occur  to  the  reader  that  all  this  is 
ingenious  of  its  author?  Mr.  Gushing,  in  his  text  just 
before  this  quotation  begins,  calls  attention  to  the  fact 
that  the  Arbitrators  in  their  disposition  of  the  indirect 
claims  (or,  as  he  prefers  to  call  them,  the  claims  for 
"national  losses")  express  a  conclusion,  not  the  reason 
of  the  conclusion.  Here,  in  giving  a  reason,  they  are  made 

1  The  Treaty  of  Washington,  p.  153. 


APPENDIX  411 

by  Mr.  Gushing  to  negative  a  reason  because  of  their 
silence.  What  right  has  a  commentator  to  conclude  that 
the  Arbitrators  do  not  consider  a  claim  for  the  general 
expenses  of  the  war  to  be  a  claim  for  indirect  losses, 
simply  because  they  are  silent?  Of  course,  no  claim 
was  brought  forward  for  "the  general  expenses  of  the 
war." 

In  my  judgment,  the  majority  Arbitrators  (and  I 
think  the  reader  will  agree)  rejected  the  claim  for  costs 
of  pursuit  because  they  considered  it  a  claim  to  recover 
for  a  part  of  the  general  expenses  of  the  war;  and  they 
deemed  it  unnecessary  to  explain  that  the  general  ex- 
penses of  the  war,  so  far  as  England  was  concerned, 
could  not  be  properly  made  the  subject  of  a  claim,  be- 
cause they  were  in  the  nature  of  indirect  losses. 

But  let  us  hear  Mr.  Gushing  further:  — 

"There  can  be  no  mistake  as  to  the  true  answer.  It  is  to 
be  found  in  the  preliminary  opinion  expressed  by  the  Arbi- 
trators. 

"  The  Tribunal,  in  that  opinion,  says  that  the  controverted 
[the  so-called  indirect]  claims  'do  not  constitute,  upon  the 
principles  of  international  law  applicable  to  such  cases,  good 
foundation  for  an  award  of  compensation  or  computation  of 
damages  between  nations/  Why  does  not  the  injury  done  to 
a  nation  by  the  destruction  of  its  commerce,  and  by  the  aug- 
mentation of  the  duration  and  expenses  of  war,  constitute  'a 
good  foundation  for  an  award  of  compensation  or  computation 
of  damages  between  nations'  ?  The  answer  is  that  such  subjects 
of  reclamation  are  'not  properly  distinguishable  from  the  gen- 
eral expenses  of  war/ 

"  Let  us  analyze  these  two  separate  but  related  opinions, 
and  thus  make  clear  the  intention  of  the  Tribunal.  It  is  this:  — 

"  The  injuries  done  to  a  Belligerent  by  the  failure  of  a  Neu- 


412  APPENDIX 

tral  to  exercise  due  diligence  for  the  prevention  of  belligerent 
equipments  in  its  ports,  or  the  issue  of  hostile  expeditions  there- 
from, in  so  far  as  they  are  injuries  done  to  the  Belligerent  in  its 
political  capacity  as  a  nation,  and  resolving  themselves  into 
an  element  of  the  national  charges  of  war  sustained  by  the  Bel- 
ligerent in  its  political  capacity  as  a  nation,  do  not,  'upon  the 
principles  of  international  law  applicable  to  such  cases'  [exclud- 
ing, that  is,  the  Three  Rules],  constitute  'good  foundation  for 
an  award  of  compensation  or  computation  of  damages  between 
nations.' 

"  Such,  in  my  opinion,  is  the  thought  of  the  Arbitrators,  par- 
tially expressed  in  one  place  as  to  certain  claims  of  which  they 
did  not  take  jurisdiction,  and  partially  in  another  place  as  to 
others  of  which  they  did  take  jurisdiction,  —  the  two  partial 
statements  being  complementary  one  of  the  other,  and  forming 
together  a  perfectly  intelligible  and  complete  judgment  as  to 
the  whole  matter."  l 

It  looks  as  though  Mr.  Gushing  had  gone  out  of  his 
way  in  order  to  find  an  answer  to  the  question  that  he 
has  put,  "Why  does  not  the  injury  done  to  a  nation  by 
the  destruction  of  its  commerce,  etc.,  constitute  a  good 
foundation  for  an  award?" 

The  proper  answer  in  this  instance  is  that  such  an 
injury  is  not  the  direct  and  proximate  result  of  the  neg- 
ligent conduct  of  the  neutral  nation.  While  the  escape  of 
these  cruisers  may  have  extended  the  period  of  the  dura- 
tion of  the  war,  it  could  have  done  so  only  indirectly. 
Other  causes  more  potent  were  operating  in  that  direc- 
tion. The  effect,  however  considerable,  was  a  remote 
effect. 

To  lay  down  the  proposition  that  the  injury  done  to 
the  United  States  by  the  destruction  of  its  commerce  is 
1  The  Treaty  of  Washington,  pp.  154-155. 


APPENDIX  413 

not  properly  distinguishable  from  the  general  expenses 
of  the  war  is  to  confound  two  kinds  of  losses  which  in 
their  nature  are  essentially  different.  "Expenses  of  the 
war,"  as  the  term  is  used  by  the  Arbitrators,  signifies 
money  paid  out,  or  an  indebtedness  incurred,  that  sooner 
or  later  must  be  discharged  by  the  payment  of  money. 
Such  expenses  are  readily  calculated,  and  are  capable 
of  being  accurately  expressed  in  figures ;  they  are  sums 
actually  laid  out.  Losses  because  of  the  destruction  of 
a  nation's  commerce  are  necessarily  vague  and  indeter- 
minate; in  short,  quite  impossible  of  being  estimated. 
One  is  a  direct  loss,  the  other  an  indirect  one.  The 
former  may  be,  however,  a  loss  for  which  the  neutral 
nation  is  in  no  wise  responsible.  In  this  event,  the  dam- 
age is  only  an  indirect  damage,  as  far  as  the  neutral  is 
concerned. 

Mr.  Gushing  apparently  declines  to  lay  hold  of  the 
real  reason  behind  the  decision  of  the  Arbitrators.  There 
could  be  no  other  reason  than  the  relation  which,  in  their 
judgment,  the  loss  bore  to  the  acts,  or  to  the  neglect  of 
the  British  officials.  Where  the  injury  is  seen  to  be 
directly  due  to  the  escape  of  the  cruiser,  a  responsibility 
attaches  to  Great  Britain;  otherwise,  not.  Let  me  repeat 
that,  in  my  opinion,  the  majority  Arbitrators  fell  into 
error  in  concluding  that  the  costs  of  pursuit  were  not  a 
direct  loss  inflicted  on  the  United  States  by  the  culpable 
neglect  that  permitted  the  cruisers  to  get  out  on  the 
ocean.  That  neglect  was  immediately  connected  with  the 
expenditure  which  the  United  States  were  compelled  to 
incur  in  order  to  send  ships  of  the  United  States  Navy  in 
pursuit  of  the  Confederate  armed  vessels.  I  am  unable 
to  perceive  what  difference  it  makes  that  the  injury  is 


414  APPENDIX 

done  to  the  belligerent  "in  its  political  capacity, "  or  done 
to  it  through  losses  brought  upon  its  citizens.  The  ques- 
tion remains,  Is  it  a  direct  injury,  —  is  the  loss  a  direct 
loss? 

Naturally  Mr.  Gushing,  because  of  his  long  training  in 
diplomatic  affairs,  felt  the  desire  to  make  the  most  of  this 
decision  as  to  the  costs  of  pursuit,  so  that  his  country 
might  be  protected  in  years  to  come,  while  acting  the 
part  of  a  neutral.  It  is  not  surprising,  therefore,  that  he 
draws  conclusions  as  follows :  — 

"The  direct  effect  of  the  judgment  as  between  the  United 
States  and  Great  Britain  is  to  prevent  either  Government, 
when  a  Belligerent,  from  claiming  of  the  other,  when  a  Neutral, 
'  an  award  of  compensation  or  computation  of  damages'  for  any 
losses  or  additional  charges  or  '  general  expenses  of  war/  which 
such  Belligerent,  hi  its  political  capacity  as  a  nation,  may  suffer 
by  reason  of  the  want  of  due  diligence  for  the  prevention  of 
violation  of  neutrality  in  the  ports  of  such  neutral.  That  is  to 
say,  the  parties  to  the  Treaty  of  Washington  are  estopped  from 
claiming  compensation,  one  of  the  other,  on  account  of  the 
national  injuries  occasioned  by  any  such  breaches  of  neutrality, 
not  because  they  are  indirect  losses,  —  for  they  are  not,  —  but 
because  they  are  national  losses,  losses  of  the  State  as  such. 
And  each  of  us  may,  in  controversies  on  the  same  point  with 
other  nations,  allege  the  moral  authority  of  the  Tribunal  of 
Geneva." 1 

This  announcement  is  of  first  importance,  provided  it 
shall  be  proved  to  rest  upon  a  solid  foundation.  For  one, 
I  find  myself  unable  to  assent  to  the  doctrine  it  affects  to 
promulgate.  If  I  rightly  apprehend  Mr.  Cushing's  rea- 
soning, it  is  that  the  character  of  the  sufferer,  and  not  the 
character  of  the  loss,  determines  whether  an  award  in 
1  The  Treaty  of  Washington,  pp.  155-156. 


APPENDIX  415 

these  circumstances  shall  be  declared  against  a  neutral; 
or,  in  other  words,  that  no  loss  sustained  by  a  nation,  in 
its  political  capacity,  by  reason  of  the  neutral's  culpable 
action,  can  furnish  a  foundation  for  an  award  of  damages 
against  that  neutral. 

From  an  inspection  of  the  record,  it  does  not  appear 
that  the  Tribunal,  as  a  matter  of  fact,  decided  that  claims 
for  the  capture  of  cargoes  of  coal  belonging  to  the  United 
States,  in  merchant  vessels  under  charter,  could  not  be 
sustained.  The  truth  is,  the  precise  question  does  not 
appear  to  have  been  made  the  subject  of  a  decision.  The 
rejection  of  the  claim  of  the  United  States  for  the  costs  of 
pursuit  was  not  based,  I  think,  as  Mr.  Gushing  would 
have  us  believe,  upon  the  ground  that  it  was  a  war  ex- 
penditure, and  for  that  reason  inadmissible;  but  because  it 
was  not  a  special  war  expenditure.  It  was  so  mixed  up 
with  general  war  expenses  that  the  Tribunal  could  not 
pronounce  it  a  direct  loss.  Whoever  to-day  cares  to  study 
the  problem  is  likely,  I  think,  to  conclude  that  these  costs 
could  readily  be  distinguished,  with  a  fair  degree  of  arith- 
metical accuracy,  as  an  expense  directly  brought  upon 
the  United  States  by  the  neglectful  conduct  of  the  British 
Government.  It  remains,  however,  that  the  majority 
of  the  Arbitrators  reasoned  differently.  They  put  their 
decision  on  the  ground  that  the  claim  of  the  United 
States  for  this  item  of  loss  was  an  indirect  claim;  that 
it  was  a  national  claim  for  an  indirect  loss. 

The  happy  solution  of  a  most  grave  international  con- 
troversy by  the  decision  and  award  at  Geneva,  combined 
with  other  causes  of  a  like  peaceful  import,  will  have  the 
effect,  it  is  to  be  hoped,  to  prevent  in  any  future  war  the 
recurrence  of  a  necessity  to  look  into  charges  of  failure  in 


416  APPENDIX 

neutral  duties,  such  as  those  now  long  since  atoned  for 
and  practically  forgotten.  Perhaps  such  a  question  as 
"  costs  of  pursuit "  may  never  be  raised  again.  If  it  should 
be,  however,  it  is  to  be  feared  that  the  construction  of 
this  decision  of  the  Arbitrators,  advanced  with  so  much 
subtlety  by  Mr.  Gushing,  will  hardly  bear  the  test  of  an 
actual  application. 


INDEX 


INDEX 


Abbott  (Tenterden,  Lord  Chief 
Justice),  grandfather  of  Agent 
for  Great  Britain,  72. 

Adams,  Brooks,  secretary  to 
American  Arbitrator,  87;  re- 
sidence at  Geneva,  209;  pre- 
sent at  opening  of  conference, 
212;  survivor,  399. 

Adams,  Charles  Francis,  Minis- 
ter to  England,  treatment  of, 
in  English  society,  26;  arrives 
at  Queenstown,  34;  Proclama- 
tion of  Neutrality  issued  be- 
fore arrival  of,  in  London,  35; 
discretion  and  self-restraint  of, 
42;  notifies  Lord  John  Russell 
of  burning  of  the  Harvey  Birch, 
46;  named  as  Arbitrator,  70; 
goes  to  Geneva,  to  take  part 
in  organizing  Tribunal,  90; 
American  Case  complains  that 
British  Government  did  not 
await  arrival  of,  142;  kind 
treatment  of,  by  Earl  Russell, 
147;  in  November,  1862,  asks 
redress  for  national  and  pri- 
vate injuries,  161;  Boutwell 
expresses  to,  Sec.  Fish's  wishes 
as  to  indirect  claims,  194;  with 
family  at  Geneva,  209;  per- 
sonal appearance,  213;  had 
moved  that  Sclopis  preside, 
214;  brief  sketch  of,  219; 
career  as  Minister,  220;  in 
retirement,  228;  closing  chap- 
ter of  biography  of,  229;  tells 
Davis  that  idea  had  occurred 
to  him  that  Arbitrators  first 
pass  upon  indirect  claims,  238; 
interview  with  Agent  and 


Counsel,  239;  wishes  Davis 
to  see  Tenterden,  etc.,  240; 
Agent  again  interviews,  241; 
Davis  and  Evarts  report  pro- 
gress to,  245;  speaks  of  Mr. 
Fish's  wishes,  246;  thought 
Cockburn  not  best  person  to 
see  in  London,  246;  efforts  of 
General  Schenck,  246;  hands 
paper  to  Davis  designed  to 
help  Arbitrators  respecting 
indirect  claims,  247;  interview 
with  Evarts,  and  consultation 
with  Sclopis,  251;  makes 
changes  in  paper  drafted  by 
Counsel,  251;  Tenterden  on, 
283;  finds  Great  Britain  want- 
ing in  due  diligence  in  case  of 
the  Florida,  289;  says  it  is  not 
for  one  Arbitrator  to  lecture 
the  others,  291 ;  Evarts  argues 
with  view  to  convincing,  in 
the  case  of  the  Georgia,  304; 
concession  by,  surprises  Da- 
vis, 305;  tribute  of  Davis  to 
impartiality  of,  306;  indig- 
nant at  charge  of  Cockburn, 
is  about  to  leave  the  room, 
322;  in  favor  of  larger  sum 
than  that  actually  awarded, 
323;  joins  with  Cockburn  in 
translating  text  of  award  into 
English,  324;  attends  Fourth 
of  July  banquet,  336;  enjoys 
hospitalities  of  Geneva,  339; 
at  Berne,  340;  signs  the  award, 
341 ;  stay  at  Geneva  after  final 
adjournment,  364;  returns 
home  on  the  Russia,  372;  his 
kindness,  372;  introduced  to 


420 


INDEX 


passengers,  372;  equanimity  of , 
on  hearing  of  loss  of  property 
by  great  fire  in  Boston,  373; 
at  Quincy,  373;  won  esteem 
and  thanked  by  Queen  and 
President,  373;  Earl  Gran- 
ville's  letter  of  thanks  to,  374; 
his  action  on  indirect  claims 
alluded  to  in  letter  to  Nation, 
401. 

Adams,  Mrs.  and  Miss,  209. 

Adams,  Charles  Francis,  Junior, 
Life  of  his  father,  xiv,  229; 
paper  on  Treaty  of  Washing- 
ton, xiv,  229;  on  public  feeling 
in  England  towards  the  U.  S., 
27;  quotes  Mr.  Fish  as  to 
promise  of  British  Govern- 
ment to  await  arrival  of  Mr. 
Adams,  Minister,  34;  treat- 
ment by,  of  the  subject  of  Mr. 
Simmer  and  the  Administra- 
tion, 53;  his  merit  as  a  writer, 
63;  closing  chapter  of  Life  of 
his  father,  229. 

Adams,  John  Quincy,  President, 
resembled  in  looks  by  his  son, 
Charles  Francis  Adams,  213; 
Diary  of,  373. 

Advertiser,  Boston  Daily,  Bemis's 
articles  in,  144;  Tuttle,  bright 
correspondent  of,  327,  329; 
describes  closing  scene,  346. 

Alabama,  The,  U.  S.  battleship, 
49. 

Alabama,  The,  Confederate 
cruiser,  known  as  "  The  290," 
48;  "hasty  recognition  of  the 
South"  connected  with  her 
fitting  out,  37;  captures  by, 
38;  Lord  Russell  admits  — 
ought  to  have  been  detained, 
40;  had  Great  Britain  earn- 
estly wished  to  detain,  would 
not  have  escaped,  42;  notori- 
ety of,  gives  name  to  claims, 


45;  Captain  Bullock  on  Brit- 
ish expression  of  regret  for 
escape,  132;  sinks  U.  S.  S. 
Hatteras ;  little  fear  of  anoth- 
er, 299;  Great  Britain  found 
liable  for  escape  of,  309. 
Alabama  Claims,  1;  6;  17;  why 
so  named,  45,  46;  a  disturbing 
influence  March,  1869,  when 
Grant  came  in,  47;  subject  of 
Johnson-Clarendon  conven- 
tion, 49,  50;  Sumner's  treat- 
ment of  the  subject,  49-53; 
demands  enormous  damages, 
51;  Motley's  treatment  of, 
55-56;  Joint  High  Commis- 
sion created  to  settle,  62-63; 
Treaty  of  Washington  entered 
into,  65-67;  news  of  proposed 
settlement  brings  relief  to 
England,  69;  Arbitrators 
named,  70;  Agent  for  United 
States  appointed,  70;  Agent 
for  England  named,  72;  Coun- 
sel named,  73-83;  Solicitor 
named,  84;  The  National  and 
Private  Alabama  Claims,  and 
their  final  and  amicable  settle- 
ment, by  Mr.  Beaman,  85-86; 
now  lodged  at  Department  of 
State,  86;  list  of,  prepared,  87; 
curious  and  unfounded  story, 
entitled  An  Incident  of  the 
Alabama  Claims  Arbitration, 
91-92;  newspapers  of  Europe 
on,  93;  statement  of,  in  Amer- 
ican Case,  133;  character  of 
bill  for  damages  on  account  of, 
137;  feeling  of  American  peo- 
ple in  regard  to,  138;  subject 
of,  wisely  managed  by  Secre- 
tary Fish  and  Bancroft  Davis, 
138;  all  claims  generically 
known  as,  what  it  meant,  159; 
Mr.  Adams,  Nov.,  1862,  solic- 
ited redress  for  national  and 


INDEX 


421 


private  injuries,  161-62;  de- 
scribed, 163;  direct  and  in- 
direct, 164-65;  Sir  Roundell 
Palmer's  memorandum,  167- 
68;  High  Commissioners,  on 
return  to  England,  should 
have  made  public  their  doings 
as  to  indirect  claims,  170;  fear 
of  war  with  Russia  made  set- 
tlement of,  desirable,  176; 
Mr.  Fish's  paper  on,  before 
Joint  High  Commission,  178; 
Article  I  of  Treaty  describes, 
179;  meaning  which  term  had 
acquired,  189-90;  Court  of 
Commissioners  of,  353. 

Alden,  James,  Rear-Admiral, 
U.  S.  N.,  calls  on  American 
party  at  Paris,  101. 

Alexandria,  The,  decision  in, 
referred  to  in  Cushing's  argu- 
ment, 127;  found  not  within 
the  prohibition  of  Foreign 
Enlistment  Act,  300. 

American  Law  Register,  The,  388. 

American  Law  Review,  The,  298. 

Andrew,  body-servant  to  Mr. 
Gushing,  10,  16,  95. 

Andrew,  John  Albion,  Governor 
of  Massachusetts,  does  not 
accept  Gen.  Caleb  Cushing's 
services,  tendered  at  outbreak 
of  war  for  the  Union,  77. 

Andrews,  Mr.,  banker  at  Paris, 
and  Mrs.  A.  entertain  Ameri- 
can party,  100. 

Annual  Register,  The,  for  1872, 
on  Cockburn's  "Reasons," 
143;  on  the  unpopularity  in 
England  of  the  arbitration 
scheme,  311. 

Archer,  The,  tender  of  the 
Florida,  captures  U.  S.  reve- 
nue cutter  Caleb  Gushing, 
164;  Great  Britain  found 
liable  for,  309. 


Argument,  American,  a  compos- 
ite work,  124;  Mr.  Davis'a 
part,  129;  Mr.  Cushing's,  126; 
Mr.  Evarts's,  125;  Mr. 
Waite's,  124;  how  printed, 
129;  its  character,  130;  criti- 
cised by  Captain  Bullock,  134; 
question  if  should  be  ex- 
changed, June  15,  205;  num- 
ber of  pages,  296. 

Argument,  British,  held  by  Ten- 
terden,  and  not  filed,  June  15, 
237;  filed  on  27th,  262;  not  of 
formidable  length,  266;  ap- 
pears to  have  been  hastily 
prepared,  267;  Sir  Roundell 
Palmer  suggests  in  letter  to 
Mr.  Evarts  that  he  intends 
requesting  Arbitrators  to  give 
leave  for  filing  further  argu- 
ment, 267;  the  proposal  de- 
clined by  U.  S.  Counsel,  269; 
reasons  for  declining,  270; 
importunity  of  Cockburn 
gains  leave  for  further  argu- 
ment, 292;  elaborate  brief 
filed,  293;  examination  of 
grounds  of,  293-303;  number 
of  pages  of,  296;  contends  that 
British  laws  furnished  means 
to  perform  neutral  duty,  301 ; 
supplementary,  filed,  302;  Sir 
Roundell  Palmer's  comment 
on,  303. 

Argyll,  Duke  of,  efforts  to  keep 
England  neutral,  27;  reminds 
Lord  John  Russell  of  proposal 
in  cabinet  to  seize  the  Ala- 
bama, or  Florida,  if  touching 
at  an  English  port,  38-39. 

Ashhurst,  Richard  L.,  memorial 
sketch  of  Meredith,  74;  on 
Meredith's  resignation,  75; 
on  Meredith's  health,  389. 

Ashmun,  John  Hooker,  on  Sum- 
ner,  52. 


422 


INDEX 


Ashton,  J.  Hubley,  account  of 
Meredith's  resignation,  389- 
91. 

Astley's,  London,  366. 

Atlantic  Monthly,  Ralph  Keeler's 
articles  in,  331. 

Award,  amount  of,  324;  decision 
drafted  by  Cockburn  and 
Adams,  324;  day  fixed  to  sign, 
325;  signed,  341;  copy  for 
archives,  Geneva,  343;  text  of, 
347;  U.  S.  could  dispose  as  it 
pleased  of  the  fund  from,  353; 
distributed  fairly,  354. 

Badeau,  Adam,  General,  Con- 
sul-General  at  London,  121; 
on  English  feeling  towards 
Americans,  263. 

Balch,  Thomas,  on  International 
Courts  of  Arbitration,  xiv,  48. 

Balch,  Thomas  Willing,  The 
Alabama  Arbitration,  xiv,  48. 

Bancroft,  George,  Davis  to,  on 
republication  of  Case,  165; 
succeeded  at  Berlin,  by  Ban- 
croft Davis,  his  nephew,  229. 

Bayard,  Thomas  Francis,  men- 
tioned by  Northcote,  177. 

Beaman,  Charles  Cotesworth, 
telegraphs  Hackett,  6;  at  De- 
partment of  State,  8;  sails  for 
Europe,  10;  appointed  Solic- 
itor, 84;  his  book  on  Alabama 
Claims,  xi,  85;  article  by,  on 
"The  Rights  and  Duties  of 
Belligerent  War  Vessels,"  in 
North  American  Review,  85;  i 
clerk  of  Senate  Committee  j 
on  Foreign  Relations,  85;  his 
character,  85;  untimely  death, 
85;  tribute  by  Wetmore  to, 
86;  pays  respects  to  M.  Grevy, 
104;  work  on  Counter-Case, 
109;  goes,  in  December,  to 
Geneva,  110;  goes,  in  June,  to 


Geneva,  205;  at  opening,  15th 
June,  212;  list  of  private 
claims  prepared  by,  317;  Mr. 
Davis  praises,  319;  with  Mr. 
Cohen,  319. 

Beau  Rivage  Hotel,  American 
party  at,  209;  General  Sher- 
man at,  279;  salute  fired  near, 
336. 

Belligerency,  England's  recog- 
nition of,  precipitate,  34; 
recognition  of,  subject  of  com- 
plaint in  American  Case,  141 ; 
British  Counter-Case  refuses 
to  discuss  question  of  recog- 
nition of,  142. 

Bemis,  George,  answers  His- 
toricus  on  hasty  recognition, 
143-47;  sketch  of,  148;  be- 
quest of,  to  Harvard  College, 
148. 

Benjamin,  Charles  F.,  narrates 
work  of  New  York  Herald 
force  in  Washington  during 
session  of  Geneva  Tribunal, 
334-36. 

Benjamin,  Judah  P.,  in  London, 
371. 

Bent,  Samuel  Arthur,  editor  of 
the  Swiss  Times,  Geneva,  329, 
332  ;  presides  at  Fourth  of 
July  dinner,  Geneva,  337. 

Bently,  publishes  in  London, 
the  American  Case,  165. 

Bernard,  Mountague,  High  Com- 
missioner, 62;  prepares  Brit- 
ish Case,  149;  his  Neutrality 
of  Great  Britain,  155;  Selborne 
on,  155;  fairness  of,  156;  pre- 
sent at  opening,  15th  June, 
212;  sketch  of,  224;  once 
pupil  of  Palmer,  225;  tribute  to 
memory  of,  by  Selborne,  225. 

Berne,  215,  223;  visit  of  Geneva 
Tribunal  officials  to,  340. 

Bethell,   Richard    (Lord   West- 


INDEX 


423 


bury),  opposes  proposal  for 
detention  of  cruisers  visiting 
English  ports,  39;  speech  of, 
quoted,  138;  urges  Gran ville 
to  refuse  to  treat  indirect 
claims  as  open  for  discussion 
before  Tribunal,  167. 

Biddle,  Cadwalader,  on  Mere- 
dith, 391. 

Binney,  Horace,  compared  with 
Meredith,  389. 

Black,  Jeremiah,  78;  his  estimate 
of  Meredith,  389. 

Black  Sea,  fear  that  England 
might  go  to  war  with  Russia 
about,  reason  for  getting  Ala- 
bama Claims  settled,  176. 

Blackmoor,  Petersfield,  Sel- 
borne's  home,  Evarts  at,  278; 
mentioned,  364. 

Elaine,  James  Gillespie,  Twenty 
Years  of  Congress,  as  to  Eng- 
land's hostile  attitude,  27. 

Blatchford,  Lord  (of  the  Guard- 
ian), 226. 

Book  of  Praise,  collection  of 
hymns,  edited  by  Sir  Round- 
ell  Palmer,  224. 

Boston,  great  fire  in,  373. 

Boutwell,  George  Sewall,  Re- 
miniscences of  Sixty  Years  in 
Public  Affairs,  xiv;  on  Sum- 
ner,  61;  on  Bancroft  Davis, 
71;  takes  message  as  to  in- 
direct claims,  from  Mr.  Fish 
to  Adams,  194;  his  message 
alluded  to  by  Adams,  246; 
his  estimate  of  Gushing,  231. 

Bovet  Pension  (Geneva),  Gush- 
ing lives  at,  209. 

Bowditch,  Dr.  Henrylngersoll,2. 

Bowles,  ,  correspondent  of 

Standard,  330. 

Bowles  Brothers,  accountant 
from,  319. 

Breckinridge,  John  Cabell,  nom- 


inee for  Presidency  favored  by 
Gushing,  77. 

Bright,  John,  writes  Sumner  on 
sympathies  of  Englishmen, 
31-32;  on  Queen's  Proclama- 
tion, 35;  friend  to  United 
States,  38;  brave  words  from, 
43;  informed  of  Sir  John  Rose 
Mission,  60;  Gran  ville  regrets 
absence  of,  171;  early  in- 
formed of  disposition  by  Tri- 
bunal of  indirect  claims,  240. 

Brittany,  14. 

Brockham  Press,  Leipsic,  prints 
American  Case,  90. 

Bruce,  Sir  Frederick,  British 
Minister,  Washington,  de- 
clares England  would  fight 
rather  than  settle  Alabama 
Claims,  47. 

Bryce,  James,  British  Ambassa- 
dor, Washington,  letter  from, 
quoted,  212. 

Buck,  Dr.  John  R.,  Bureau  of 
Archives,  Department  of 
State,  240. 

Bullock,  James  Dunwoody, 
naval  representative  in  Eu- 
rope of  the  Confederate  States 
(and  author  of  The  Secret  Ser- 
vice of  the  Confederate  States  in 
Europe),  on  feeling  in  England 
towards  the  South,  32-33; 
says  Great  Britain  virtually 
confessed  she  owed  reparation, 
132;  criticises  American  Case, 
134;  it  should  have  displayed 
friendly  spirit,  135;  took  ad- 
vice of  Counsel  as  to  meaning 
of  British  Foreign  Enlistment 
Act,  300. 

Butterfield,  Daniel,  Gen.,  U.S.  A., 
109. 

Cairns,  Lord,  in  House  of  Lords, 
122. 


424 


INDEX 


Caleb  Gushing,  The,  revenue 
cutter,  captured,  164. 

Callahan,  James  Morton,  Dip- 
lomatic History  of  the  Southern 
Confederacy,  quoted,  29. 

Calvin,  John,  208. 

Canton  of  Geneva,  President  of, 
and  Council  of  State,  called 
on  by  Mr.  Adams,  90;  official 
dinner  by,  339;  fire  salute  as 
Tribunal  closed,  344;  letter  of 
acknowledgment  of  hospital- 
ities of,  addressed  to,  by 
Agent  and  Counsel  of  United 
States,  363. 

Carteret,  M.,  President  of  Coun- 
cil of  State,  Geneva,  339. 

Case,  American,  The,  to  be 
printed  and  presented  by  16 
December,  1871,  88;  written 
by  Bancroft  Davis,  88;  first 
chapters  in  memorandum 
form  submitted  to  Woolsey, 
Lawrence,  Hoar,  and  Gushing, 
88;  approved  by  Mr.  Fish,  88; 
merits  of,  89;  Cushing's  esti- 
mate of,  89;  Senator  George 
F.  Edmunds 's  opinion  of,  89; 
seven  volumes  of  document- 
ary evidence  and  correspond- 
ence accompany,  89;  printed 
in  English,  French,  and  Span- 
ish, 90;  project  of  printing  in 
Italian  abandoned,  90;  ex- 
changed, 91;  one  of  the  Amer- 
ican Counsel  loses  copy  of,  in 
street,  Washington,  105;  Ban- 
croft Davis's  style,  132;  handy 
volume  of,  printed  at  Leipsic, 
133;  aim  of,  briefly  stated, 
133;  called  acrimonious  by 
Sir  Roundell,  134;  not  so,  135; 
in  terms  such  as  it  should  have 
been,  136;  affected  by  deliv- 
ery of  Summer's  speech,  137; 
Fish  and  Davis  deserve  thanks 


for,  138;  like  a  declaration  in 
tort,  140;  complains  of  pre- 
cipitancy in  recognizing  bel- 
ligerency, 141 ;  Cockburn 
speaks  of  it  as  "unanswer- 
able," 149;  no  discourtesy  in, 
151;  condemned  by  James 
Ford  Rhodes,  historian,  158; 
contents  known  to  English 
people,  when,  165;  attacked 
by  London  press,  165;  com- 
plaint that  indirect  claims 
not  within  the  Treaty,  not 
made  till  later,  166;  reply  to 
strictures  of  Mr.  Rhodes  on, 
396-402. 

Case,  the  British,  work  chiefly 
of  Bernard,  with  Tenterden 
and  Palmer  assisting,  149; 
style  and  tone  of,  149;  alleges 
failure  in  U.  S.  to  be  neutral 
towards  Spain  and  Portugal, 
150;  Selborne  says  in  marked 
contrast  with  American  Case, 
151 ;  reflects  credit  on  authors, 
153;  leading  ground  of  de- 
fence in,  154. 

Catacazy,  Russian  Minister  at 
Washington,  thought  by  Eng- 
lish High  Commissioners  to 
be  working  against  their  con- 
cluding a  treaty,  177. 

Catacombs  of  Paris,  visit  to, 
108. 

Cavour,  Camillo  Benso,  alluded 
to  by  Count  Sclopis,  339. 

Chamouni,  English  party  visit, 
269. 

Chandler,  William  Eaton,  esti- 
mate of  Gushing,  231. 

Chauncey,  Elihu,  10. 

Chauvin,  at  Paris,  lithographs 
American  Counter-Case,  106. 

Chicago,  great  fire  at,  3-5; 
architecture  of,  118. 

Childers,  H.  C.  E.,  to  Granville, 


INDEX 


425 


as  to  getting  Alabama  Claims 
out  of  the  way,  176. 

Chiselhurst,  English  home  of 
Empress  Eugenie,  114. 

Church,  Dean,  226. 

Cirque  d'Amerique,  at  Geneva, 
276. 

Claims  for  private  losses,  action 
by  Department  of  State  on, 
46;  President  Grant  recom- 
mends that  the  U.  S.  assume, 
59;  labor  to  bring  together 
proofs  in,  84;  Adams  to  Rus- 
sell, transmitting  details  of 
losses,  86;  circular  letter  of 
Department  to  owners  of,  87; 
Beaman  prepares  list  of,  87; 
list  of,  occupies  one  volume, 
89;  further  mentioned,  317; 
exposition  of  classes  of,  319; 
additional  list,  322;  delibera- 
tions of  Congress  as  to  distribu- 
tion of  fund  to  pay,  353;  what 
Congress  did,  354;  owners  of, 
eager  to  learn  of  what  had 
been  done  at  Geneva,  357. 

Clarendon,  Lord,  Johnson-C. 
treaty,  49;  Motley's  interview 
with,  55-56;  writes  Thornton 
of  President  Grant's  allusion 
to  larger  claims  for  reparation, 
162. 

Coal,  supply  of,  argument  by 
Waite,  306;  decision  as  to, 
348;  d'ltajuba's  views  as  to, 
349;  Staempfli  on  supply 
taken  at  Melbourne,  349. 

Cobden,  Richard,  friend  to  U.  S., 
38;  brave  words  from,  43; 
encourages  Balch's  plan  for 
arbitration,  48. 

Cockburn,  Sir  Alexander  James 
Edmund,  Lord  Chief  Justice, 
appointed  Arbitrator,  70;  at 
Geneva  in  December,  1871, 
90;  Annual  Register  on  his 


"Reasons,"  143;  stigmatizes 
American  Agent,  143;  re- 
ported as  pronouncing  Amer- 
ican Case  unanswerable,  149; 
severely  criticised  by  Gush- 
ing, 152-53;  rumors  of  his 
favoring  rupture  of  Treaty, 
199;  personal  appearance  of, 
214;  remark  by,  that  he  sat  in 
some  sense  as  the  represent- 
ative of  Great  Britain,  218; 
sketch  of,  220;  defended  Palm- 
erston,  221;  Tichborne  trial, 
charge  of,  in,  221;  friend  of 
Dickens,  221;  Lord  Selborne 
on,  222;  prodigious  work  of, 
223;  asks  Sir  Roundell  to 
draw  up  form  of  declaration 
for  Arbitrators  in  matter  of 
indirect  claims,  253 ;  speaks  to 
Adams  about  giving  leave  to 
Sir  Roundell  to  file  further 
argument,  269;  attempts  to 
get  leave  granted  for  further 
English  argument,  270;  ap- 
plies himself  to  hard  work, 
271;  Sanderson's  description 
of,  272;  absorbed  look  of,  272; 
pays  no  attention  to  social  re- 
quirements, 272;  criticises 
freely  all  others  than  English- 
men, 281;  in  opinion  of  Sir 
Roundell,  only  one  of  Arbitra- 
tors possessing  experience  of  a 
fully  developed  judicial  mind, 
282;  opposes  Staempfli's  plan 
of  procedure,  285;  reasons  ad- 
vanced by,  for  asking  for 
further  argument,  286;  for 
need  of  Counsel,  287;  conduct 
of,  at  conference  of  17th  July, 
289;  further  impassioned  ap- 
peal of,  to  his  fellow-arbitra- 
tors, 290;  extraordinary  lan- 
guage of,  291;  gains  point, 
291;  conduct  of,  criticised  in 


426 


INDEX 


England,  292;  Schenck  on, 
292;  alone  in  paying  attention 
to  question  whether  the  Three 
Rules  embodied  international 
law  as  it  was  at  time  of  Ala- 
bama escape,  297;  listens  at- 
tentively and  interrupts  fre- 
quently during  Evarts's  oral 
argument,  304;  seeks  further 
elucidation  concerning  entry 
of  Florida  into  Mobile,  308; 
says  award  of  sum  in  gross 
desirable,  317;  fixes  it  at  eight 
millions,  317;  discloses  fact 
that  six  per  cent  interest  was 
allowed,  321;  exciting  scene 
caused  by,  322;  apologizes, 
323;  joins  Mr.  Adams  in  pre- 
paring text  of  decision  and 
award,  324;  only  one  absent 
from  dinner  given  by  Canton 
of  Geneva,  339;  will  not  go 
with  party  to  Berne,  340;  does 
not  sign  the  award,  342;  pre- 
sents bulky  papers,  as  a  dis- 
senting opinion,  342;  be- 
havior when  award  is  an- 
nounced, 345;  social  short- 
comings, 346;  on  supply  of 
coal,  349;  character  of  his 
opinion,  356;  its  effect  to  call 
out  reply  from  Gushing,  357; 
had  attacked  Gushing,  358- 
59;  accuses  Gushing  of  ignor- 
ance of  law,  360;  Cushing's 
rejoinder,  361;  Sir  Robert 
Lowe  regrets  as  to,  362;  U.  S. 
does  not  thank,  374. 

Cockburn,  Sir  George,  Admiral, 
R.  N.,  220. 

Cohen,  Arthur  (banister,  sub- 
sequently M.  P.),  works  on 
table  of  claims,  318. 

Coleridge,  John  Duke,  Lord 
Chief  Justice,  on  sympathy 
of  English  upper  classes  with 


the  South,  26;  praises  conduct 
of  Charles  Francis  Adams  in 
society,  26. 

Collyer,  Robert,  scene  in  church 
of,  in  Chicago,  4. 

Comedie  Franchise,  plays  at, 
108. 

Commissions  to  commanders  of 
Confederate  cruisers,  question 
of  effect  of,  argued  by  Evarts 
orally,  303;  decision  as  to,  348. 

"Confederate,  "term  used  in  Brit- 
ish Case,  21;  now  generally 
employed  throughout  North, 
where  "rebel"  formerly  was 
used,  21. 

Confederate  loan,  21. 

Confederation,  Swiss,  President 
of,  extends  hospitalities,  340; 
Mr.  Davis  writes  letter  of 
thanks  to  President  and  Coun- 
cil of  State  of,  363. 

Congress,  attempt  made  in,  to 
amend  Treaty  of  Washington, 
203;  action  of  Senate,  and  fail- 
ure of  attempt,  204;  discussion 
in,  as  to  distribution  of  Ge- 
neva award  fund,  353;  fund 
distributed  fairly  by,  354. 

Cotton  exportation  to  England 
a  factor  in  English  sympathy 
with  South,  28-29. 

Counsel,  contemplated,  though 
not  specifically  provided  for, 
by  Treaty,  73;  letter  to,  from 
Secretary  Fish,  84;  their  re- 
port to  Secretary  of  State, 
364;  twofold  duty  of,  403. 

Counter-Case,  American,  Mr. 
Davis  begins  work  on,  92;  had 
to  be  delivered  by  15th  April, 
105;  lithographed  by  Chauvin, 
106;  ready,  15th  April,  109; 
delivered  at  Geneva,  15th, 
110;  copy  taken  to  American 
Minister,  London,  110;  replies 


INDEX 


427 


to  charge  that  the  U.  S.  had 
failed  in  its  duty  toward  Spain, 
Portugal,  and  other  powers, 
150;  its  size,  156;  ninth  sec- 
tion of,  treats  of  damages, 
194. 

Counter-Case,  British,  dignified 
in  tone,  154;  discusses  "due 
diligence"  under  the  Three 
Rules,"  154;  discloses  cum- 
brous method  of  enforcing 
Foreign  Enlistment  Act,  155; 
prepared  mainly  by  Bernard, 
155;  its  size,  156;  exchanged 
15th  April,  156;  extract  from, 
on  charge  of  unfriendliness, 
157. 

Cowden,  Eliot,  entertains  Amer- 
ican party  at  Paris,  100. 

Cramps,  shipbuilders  at  Phila- 
delphia, 49. 

Crane,  Dr.  Edward  A.,  helpful 
to  secretaries  at  Paris,  103. 

Crapo,  William  Wallace,  on  the 

"lay"  in  whaling- vessels,  319. 

Cruisers,  Confederate,  term  ap- 
plied to,  164;  inculpated,  353; 
exculpated,  354.  [See  Alabama, 
Florida,  Georgia,  Shenandoah, 
etc.] 

Crystal  Palace  at  Sydenham, 
114. 

Curtis,  Benjamin  Robbins,  a 
great  lawyer,  78;  invited  to 
be  Counsel,  80;  Dred  Scott 
decision,  opinion  of,  in,  80; 
defence  of  Andrew  Johnson 
by,  80;  wonderful  power  as  an 
advocate,  81;  health  reason 
for  declining,  82;  J.  Hubley 
Ashton,  on  his  declining,  391. 

Gushing,  Caleb,  Senior  Counsel, 
1;  selects  private  secretary,  6; 
personal  appearance  of,  8; 
brigadier-general  of  volun- 
teers in  Mexican  War,  9; 


methodical  habits  of,  9;  sails 
for  Brest  in  Ville  de  Paris,  10; 
good  sailor,  11;  socially  in- 
clined to  passengers,  12;  at 
Rennes,  14;  goes  to  early 
morning  mass,  15;  good  story- 
teller, 16;  arrives  at  Paris,  17; 
Counsel  for  the  U.  S.  before 
Commission  to  settle  Hud- 
son's Bay  Company  claim, 
57;  selected  by  Mr.  Fish  as 
Counsel,  73;  sketch  of,  75-79; 
usefulness  in  Pierce's  Cabinet, 
76;  characteristics  as  a  lawyer, 
78;  aid  to  Department  of 
State,  78;  consulted  by  Ban- 
croft Davis,  79;  American  Case 
submitted  to,  88;  his  tribute 
to  Minister  Washburne,  100; 
lodgings  at  Paris,  104;  pays 
respects  to  M.  Grevy,  104; 
and  to  M.  Thiers  and  M. 
Guizot,  104;  visits  Catacombs, 
108;  at  Consul-General's  din- 
ner, 109;  goes  to  Geneva,  109; 
returns  to  Paris,  123;  chap- 
ters of  Argument  by,  and  his 
style,  126;  dislike  of  England, 
126;  believed  British  Govern- 
ment was  unfriendly,  127; 
tribute  to  England's  greatness, 
128;  mention  of  his  The  Treaty 
of  Washington,  152;  reply  to 
charge  against  U.  S.  as  regards 
Spain  and  Portugal,  152;  on 
the  term  "  indirect  claims," 
161 ;  characterization  of  alarm 
in  London  over  the  indirect 
claims,  167;  leaves  Paris  for 
Geneva,  205;  at  Pension  Bo- 
vet,  209;  at  opening  of  Con- 
ference, 212;  resumes  law 
practice,  Washington,  230; 
nominated  for  Chief  Justice 
of  the  U.  S.,  230;  name  with- 
drawn, 231 ;  Boutwell  on,  231 ; 


428 


INDEX 


Chandler  on,  231;  goes  as 
Minister  to  Spain,  232;  his 
knowledge  of  Spain,  232; 
death,  232;  Waite  on,  232; 
Devens  on,  232;  informs  Mr. 
Davis  that  Counsel  had  agreed 
on  form  of  paper  for  Mr. 
Adams,  249;  memorandum  by, 
why  no  further  argument 
by  British  Counsel  should  be 
permitted,  269;  reasons  why 
leave  for  further  British  argu- 
ment would  be  unfair,  270-71 ; 
in  evening  dress,  273;  criti- 
cises Cockb urn's  objections  to 
Staempfli's  plan  of  procedure, 
287;  replies  to  British  supple- 
mentary argument,  306;  argu- 
ment by,  of  great  merit,  307; 
not  disturbed  by  interviewers, 
326;  Fourth  of  July  dinner 
speech  of,  337;  knowledge  of 
local  history,  337;  General  Du- 
four  calls  on,  338;  described 
by  Young,  342;  on  impress- 
iveness  of  scene  announcing 
the  award,  345;  writes  The 
Treaty  of  Washington,  357; 
attacks  Lord  Chief  Justice, 
why,  358-59;  continues  attack, 
361;  sails  for  home,  364;  opin- 
ion of  the  American  Case,  398; 
memorandum  form  of  Case 
submitted  to,  400;  discussion 
of  question  of  costs  of  pursuit 
and  indirect  claims,  405,  410- 
15. 

Dallas,  George  Mifflin,  Ameri- 
can Minister  at  London,  visits 
house  of  Lord  John  Russell 
(May,  1861),  to  discuss  war 
situation,  34,  35. 

Damages,  Counter-Case  of  U.  S. 
treats  of,  194;  agreement  be- 
tween parties  as  to  rule  of, 
suggested,  195;  not  contem- 


plated unduly  to  burden  a 
neutral,  195;  strictly  no  rule 
of,  197;  remark  of  Judge 
Theron  Metcalf  as  to  the  law 
of,  197;  chapter  on,  310-325; 
question  of,  stoutly  contested 
by  Great  Britain,  312;  no 
specific  sum  named  by  U.  S., 
313;  estimate  by  Mr.  Davis, 
315;  claim  by  Great  Britain 
that  they  are  not  recoverable 
because  Confederate  States 
are  now  a  part  of  the  U.  S., 
315;  gross  sum  preferable, 
316;  amount  of,  awarded,  324; 
not  sufficient  to  reach  full 
measure  of  loss,  352. 

Darboy,  Archbishop  of  Paris, 
Mr.  Washburne's  service  in 
case  of,  99. 

D'Aubigne,  Jean  Henri  Merle, 
historian  of  the  Reformation, 
house  of,  209. 

Davis,  Jefferson,  achievements 
named  by  Gladstone,  22; 
Cushing's  letter  to,  231. 

Davis,  John,  Governor  of  Massa- 
chusetts, 71. 

Davis,  John,  sails  on  Ville  de 
Paris,  10;  papers  and  docu- 
ments in  charge  of,  14;  sec- 
retary to  his  uncle,  Bancroft 
Davis,  87;  goes  to  Rome,  with 
view  to  printing  Case  in 
Italian,  90;  brings  papers  to 
Paris  office  of  Agent  and 
Counsel,  103;  lives  in  Lathi 
Quarter,  104;  works  on  Coun- 
ter-Case, 106;  brings  English 
compositors  from  London  to 
Paris,  129;  at  opening  of  Con- 
ference, 212;  birthday,  234; 
Assistant  Secretary  of  State, 
235;  Judge  of  Court  of  Claims, 
235;  early  death  lamented, 
235;  takes  copy  of  Evarte'g 


INDEX 


429 


argument  to  London  for  print- 
ing, and  quick  return,  304; 
brings  to  Washington  the 
decision  and  award,  355. 
Davis,  John  Chandler  Bancroft, 
viii;  his  Mr.  Fish  and  the  Ala- 
bama Claims,  xiii,  53;  secre- 
tary of  Joint  High  Commis- 
sion, 63;  resigns  office  of 
Assistant  Secretary  of  State, 
and  appointed  Agent  of  U.  S. 
before  the  Geneva  Tribunal, 
70;  sketch  of,  71;  sails  for 
Havre  with  Case  and  Docu- 
ments, 93;  trusts  in  Tenter- 
den,  72;  acknowledges  obliga- 
tions to  Gushing,  79;  Counsel 
are  recommended  to  consult 
freely  with,  84;  author  of  the 
American  Case,  88, 397;  prints 
first  chapters  in  memorandum 
form,  and  submits  to  Woolsey, 
and  others,  88;  prints  Case  in 
French  and  Spanish,  90;  goes 
to  Geneva,  to  take  part  in 
organizing  the  Tribunal  in 
December,  1871,  90;  pays 
respects  to  President  of  Swiss 
Canton,  90;  preparing  Coun- 
ter-Case, 92;  sends  full  reports 
to  Mr.  Fish,  94;  his  appear- 
ance and  manner,  96;  lodgings 
at  Paris,  104;  organizing  force 
for  work  on  Counter-Case, 
106;  appreciates  work  done 
for,  107;  takes  Counter-Case 
to  Geneva,  109;  on  Tenterden 
at  Geneva,  110;  sends  to  Lon- 
don for  printers,  129;  strict- 
ures on  his  management,  158; 
author  of  part  of  Counter- 
Case  relating  to  damages, 
194;  suggests  that  Counsel  on 
the  two  sides  arrange  as  to 
rule  of  damages,  195;  himself 
an  excellent  lawyer,  196;  says 


impression  in  Europe  is  that 
England  is  not  sincere  as  to 
indirect  claims,  199;  requested 
by  Tenterden  to  have  new 
Arbitrators,  199;  talks  with 
Tenterden,  as  to  outlook  for 
Treaty,  199;  as  to  opposition 
of  the  Lord  Chief  Justice,  200; 
agrees  with  Tenterden  on 
plan  to  overcome  deadlock, 
201;  present  at  opening,  June 
15th,  212;  criticises  Cockburn 
for  speaking  of  himself  as  in 
some  sense  the  representative 
of  Great  Britain,  219;  re- 
appointed  Assistant  Secre- 
tary of  State,  229;  Minister  to 
Germany,  229;  Judge  of  Court 
of  Claims,  229;  again  Assist- 
ant Secretary  of  State,  229; 
Reporter  of  the  Supreme 
Court  of  the  U.  S.,  229;  books 
by,  230;  death  of,  230;  sug- 
gests name  of  Waite  for  Chief 
Justice,  230;  presents  Ameri- 
can Argument,  236;  suggests 
to  Mr.  Adams  that  Tribunal 
pass  on  indirect  claims  in  ad- 
vance of  other  claims,  238; 
with  Counsel  calls  on  Mr. 
Adams,  239;  Diary  of,  239; 
confers  with  Adams  about 
seeing  Tenterden,  240;  talks 
with  d'ltajuba,  240;  with 
Tenterden,  241;  reports  to 
Counsel  result  of  Tenterden 
interview,  242;  submits  to 
Counsel  Sir  Roundell  Palmer's 
three  points,  244;  Counsel  con- 
cur in  views  of,  245;  visits 
Mr.  Adams  in  company  with 
Mr,  Evarts,  245;  would  mod- 
ify Mr,  Adams's  paper,  248; 
letter  from,  to  Fish  mentioned, 
giving  history  of  the  indirect 
claims,  248;  to  Tenterden  on 


430 


INDEX 


objectionable  language  in  Sir 
Roundell's  note,  249;  in- 
formed that  Counsel  had 
agreed  on  a  paper  for  Mr. 
Adams,  249;  sorry  Mr.  Adams 
had  changed  draft  of  Counsel, 
251;  cables  Mr.  Fish  probable 
action  of  Tribunal,  252;  noti- 
fies Mr.  Fish  that  Arbitrators 
had  unanimously  agreed  to 
dispose  of  indirect  claims, 
253;  announces  that  declara- 
tion of  Arbitrators  is  accepted 
by  President,  255;  The  Nation 
says  it  was  not  he,  but  Cush- 
ing,  that  put  indirect  claims 
into  the  Case,  256;  conduct 
with  regard  to  note  that  Ten- 
terden  proposed  laying  before 
Tribunal,  256M50;  importance 
of  action  by,  260;  cables  Mr. 
Fish  that  arbitration  goes  on, 
262;  conversation  with  Gush- 
ing about  Sir  Roundell's  let- 
ter proposing  further  argu- 
ment, 269;  on  proposal  for 
further  British  argument,  271 ; 
Tenterden  on,  283;  lets  Tri- 
bunal know  position  of  U.  S., 
as  to  further  argument,  291; 
surprised  at  concession  by  Mr. 
Adams,  305;  tribute  to  the 
impartiality  of  Mr.  Adams, 
306;  reports  Englishmen  as 
trying  to  prevent  award  of 
gross  sum,  317;  Rashleigh 
Holt- White  on,  333;  after- 
dinner  speaking  in  French  by, 
339;  newspaper  reporter  on, 
at  scene  of  final  adjournment, 
342;  addresses  letter  of  thanks 
to  neutral  Arbitrators,  350; 
farewell  letter  by,  to  President 
and  Council  of  State,  Canton 
of  Geneva,  363;  likewise  to 
President  and  Council  of 


State  of  the  Swiss  Confedera- 
tion, 363;  sails  for  home,  364; 
report  to  Sec.  Fish,  375;  while 
Minister  to  Berlin,  dines  with 
Sclopis  at  Turin,  375;  Mere- 
dith's resignation  no  reflection 
on,  388;  criticism  of,  by  Mr. 
James  Ford  Rhodes  discussed 
in  letter  to  Nation,  396-402; 
M.  Moreau's  remark  to,  after 
reading  the  Case,  399;  Sclopis 
says  that  he  won  the  victory 
at  Geneva,  by  writing  the 
American  Case,  149,  399;  the 
crowning  merit  of  his  services, 
401. 

Davis,  Mrs.  Bancroft,  ix;  help  in 
her  husband's  work,  96;  goes 
to  Geneva,  109;  attends  final 
conference,  341;  present  at 
dinner  of  Sclopis,  Turin,  375. 

De  Grey  and  Ripon,  Earl,  ap- 
pointed High  Commissioner, 
62;  his  "managing"  Fish,  66; 
is  to  see  Sumner,  177;  denies 
in  House  of  Loro!s  that  High 
Commissioners  had  a  secret 
understanding  as  to  indirect 
claims,  185;  Adams  talks  with, 
194. 

Delano,  Columbus,  suggests 
Waite  as  Counsel,  83. 

Derby,  Lord,  supports  Granville 
in  defending  Treaty  against 
attack  by  Lord  John  Russell, 
171. 

Des  Bergues  Hotel,  English 
party  at,  210. 

Desmarcq,  M.,  French  artist, 
Evarts  advises,  101;  sees  Gen. 
Sherman  at  War  Department, 
Washington,  102. 

Devens,  Charles,  on  Gushing, 
232. 

Dickens,  Charles,  Cockbum  a 
close  friend  of,  221. 


INDEX 


431 


Dijon,  stop  at,  on  way  to  Geneva, 
205. 

Disraeli,  Benjamin,  efforts  of, 
to  keep  England  neutral,  27; 
in  House  of  Lords,  122;  on 
indirect  claims,  172. 

Distribution  of  the  Alabama 
award  money  in  U.  S.  criti- 
cised, 351;  fairly  made  after 
full  deliberation,  353. 

D'ltajuba.  Marcus  Antonio  d' 
Arango,  Baron,  appointed 
Arbitrator,  70;  description  of, 
213;  characteristics,  217;  made 
Viscount,  217;  speaks  to  Davis 
with  reference  to  procedure 
in  direct  claims,  240;  Cock- 
burn's  opinion  of,  281;  an- 
nounces points  on  which  argu- 
ments would  be  heard,  292; 
signs  award,  341;  silver  pre- 
sented to,  374. 

D'ltajuba,  Viscountess,  attends 
final  conference,  341. 

D'ltajuba,  Antonio  d' Arango, 
secretary  to  his  father,  217; 
later  becomes  Minister  from 
Brazil  to  U.  S.,  218;  dinner 
guest,  276. 

Dollar,  depreciation  of,  urged  by 
Great  Britain  as  reason  for 
small  amount  as  damages, 
321. 

Don  Pacifico  affair,  Palmerston 
in,  defended  by  Cockburn, 
221. 

Dore,  Gustave,  talk  with,  107. 

Dover,  arrival  of  Channel 
steamer  at,  112. 

Dudley,  Thomas  H.,  Consul  at 
Liverpool,  42;  confers  with 
Counsel,  101. 

"  Due  diligence "  construed, 
347. 

Dufour,  Wilhelm  Heinrich,  Gen., 
calls  on  Gen.  Gushing,  338. 


Eaton,  John,  Gen.,  quoted  for 
anecdote  of  Gen.  Sherman, 
102. 

Economist,  The,  says  that  Se- 
cession is  believed  to  be  a  fait 
accompli,  26. 

Editorials,  English,  reprinted  in 
U.  S.,  19. 

England,  misgivings  as  to  con- 
duct of,  18;  unfriendly  spirit 
of,  19;  criticisms  from  press  of, 
unduly  regarded  by  Ameri- 
cans, 19;  U.  S.  expected  sym- 
pathy from,  20;  speeches  in 
Parliament  favoring  the 
South,  20;  work  in  shipyards 
of,  for  Southern  aid,  21;  Glad- 
stone's speech  favoring  South, 
22;  thought  to  be  about  to 
offer  mediation,  23;  press  of, 
its  utterances,  25,  26;  enquiry 
why  aristocracy  of,  sym- 
pathized with  South,  27;  ani- 
mosity toward,  in  New  Eng- 
land, 28;  views  of  leading 
men  of,  on  slavery,  29;  ignor- 
ance of,  in  respect  to  Ameri- 
can affairs,  31;  possible  jeal- 
ousy, 32;  majority  of  well-to- 
do  people  of,  on  side  of  South, 
33 ;  hasty  recognition  of  bellig- 
erency, 33-35;  explained  by 
Thomas-  Hughes,  36;  hasty 
recognition  practically  con- 
nected with  fitting-out  of  the 
Alabama,  37;  latter-day  testi- 
mony as  to  feeling  of,  38; 
opinion  of  Gold  win  Smith,  41; 
feeling  in,  well  known  at 
Washington,  42;  many  friends 
of  U.  S.  among  public  men  of, 
43;  widespread  belief  in  U.  S. 
that  responsibility  for  escape 
of  Alabama  chargeable  to,  45; 
gains  carrying-trade  because 
of  destruction  of  American 


432 


INDEX 


ships,  46;  storm  In,  threatens 
disruption  of  Treaty,  110; 
duty  of,  and  failure  of,  treated 
in  Argument  of  U.  S.,  125; 
Cushing's  dislike  for,  126; 
greatness  of,  extolled  by  Gush- 
ing, 128;  unfriendly  course  of, 
forms  subject  of  chapter  in 
American  Case,  139;  expres- 
sion of  regret  by,  in  Treaty, 
allayed  feeling,  140;  complaint 
of  precipitancy  in  recognition 
of  belligerency,  141;  refuses 
to  discuss  the  charge,  142; 
discussed  by  "Historicus" 
and  Mr.  Bemis,  143-147;  rea- 
sons of,  for  not  replying  to 
the  charge,  157;  Sclopis  prac- 
tically acquits,  158;  panic  in, 
over  indirect  claims,  160; 
American  Case  made  public 
in,  165;  press  of,  on  the  Case, 
166;  demands  withdrawal  of 
claims  for  indirect  damages, 
168;  taxpayers  of,  have 
French  indemnity  in  mind,  i 
169;  not  fully  advised,  at  the 
time,  of  what  was  done  by  the  | 
Commissioners  at  Washing- 
ton, 170;  debate  in  Parlia- 
ment, 172;  chance  of  war  with 
Russia  hastens  settlement  of 
Alabama  Claims,  176;  argu- 
ment of,  that  indirect  claims 
were  not  included  in  the  sub- 
mission, 180-184;  fear  possible 
action  of  neutral  Arbitrators 
on  damages,  198;  thought  to 
be  not  sincere,  199;  politics  of, 
to  be  considered,  202;  sug- 
gests that  Treaty  be  amended, 
203;  attempt  fails,  204;  her 
proprietorship  of  Switzer- 
land's scenery,  207;  as  it  were, 
on  trial,  236;  asks  an  adjourn- 
ment, 237;  strong  feeling  in, 


that  Arbitrators,  while  reject- 
ing indirect  claims,  would  give 
them  weight  in  passing  upon 
other  claims,  242;  anxiety  in, 
as  to  action  of  Tribunal,  264; 
aim  of  American  party  to 
cultivate  friendship  with,  275 ; 
"official  tone  "  of,  at  Geneva, 
279-84;  found  liable  in  cases 
of  Florida,  Alabama,  and  the 
Shenandoah,  after  leaving  Mel- 
bourne, 359. 

Eugenie,  Empress,  escape  of,  ac- 
complished with  help  of  Dr. 
Evans,  103;  at  Chiselhurst, 
114. 

Evans,  Dr.  Thomas  W.,  helps 
American  party  at  Paris,  102; 
aids  Empress  Eugenie,  103; 
Evarts's  remark  to,  at  a  dinner 
party,  103. 

Evarts,  William  Maxwell,  of 
Counsel  for  U.  S.,  6;  appointed 
after  Meredith's  resignation, 
80;  accepts,  81;  leader  at  the 
bar  of  New  York  City,  82; 
political  career  of,  82;  name 
suggested  by  Bancroft  Davis, 
83;  classmate  of  Waite,  83; 
his  secretary,  88;  advises  a 
French  artist,  101;  remark  to 
Dr.  Evans  at  a  dinner  party, 
103;  family  at  Paris,  104;  an 
accident  at  Washington,  105; 
share  of  the  American  Argu- 
ment, 125;  long  sentences  of, 
125;  esteemed  by  the  Justices 
of  the  Supreme  Court  of  the 
U.  S.,  125;  leaves  Paris  for 
Geneva,  205;  at  opening  of  the 
Conference,  212;  counsel  in 
Beecher  trial,  232;  argued  the 
Hayes-Tilden  question,  233; 
Secretary  of  State,  233;  dele- 
gate to  Monetary  Conference 
at  Paris  in  1881,  233;  Senator 


INDEX 


433 


from  New  York,  233;  the 
"  Evarts  Act,"  233;  witty  say- 
ings of,  233;  interview  with 
Sir  Roundell  Palmer  as  to 
proceeding,  240;  sees  Mr. 
Adams,  in  company  with  Mr. 
Davis,  in  regard  to  disposition 
of  indirect  claims,  245-47; 
again  sees  Mr.  Adams,  251;  de- 
clines Sir  Roundell's  proposal 
for  further  argument,  268; 
goes  with  Mr.  Waite  to  Paris, 
269;  an  after-dinner  wit,  273; 
charming  diner-out,  274; 
friendship  with  Sir  Roundell, 
277;  Selborne's  (Sir  Round- 
ell's)  estimate  of,  277;  with 
Mrs.  Evarts,  visits  Lord  and 
Lady  Selborne,  278;  writes 
farewell  letter  to  Selborne 
from  Liverpool,  278;  effect  of 
commissions  argued  by,  303; 
apt  replies  to  interrupting 
questions,  304;  argument 
quickly  translated  and  printed, 
304;  drafts  reply  as  to  effect 
of  Florida's  entry  into  Mobile, 
309;  Young's  description  of, 
at  first  conference,  342;  meets 
Judah  P.  Benjamin  in  street  in 
London,  371. 

Evarts,  Mrs.,  daughters,  and 
younger  children,  at  Paris, 
104;  at  Geneva,  209;  is  present 
at  final  conference,  341. 

Ex-territoriality,  privilege  of,  its 
meaning,  348. 

Favrot,  Alexandre,  appointed 
Secretary  of  the  Tribunal,  91 ; 
Counter-Case  delivered  to, 
15th  April,  110;  present  at 
opening  conference,  212; 
sketch  of,  223;  reads  the  de- 
cision and  award,  in  English, 
341. 


Field,  David  Dudley,  asks  Count 
Sclopis  what  gained  the  vic- 
tory for  the  U.  S.,  149;  399. 

Fievee,  Joseph,  on  the  English- 
man's love  of  money,  310. 

Fillmore,  Millard,  President, 
William  M.  Meredith,  Secre- 
tary of  the  Treasury,  in  Cabi- 
net of,  74. 

Fish,  Hamilton,  acquits  Mr. 
Gladstone  for  his  Newcastle 
speech,  24;  on  precipitate  ac- 
tion of  England  in  proclama- 
tion, 34;  accepts  position  of 
Secretary  of  State,  47;  did 
not  know  that  Sumner  was 
going  to  make  a  speech  in- 
sisting on  enormous  damages, 
54;  patience  after  Mr.  Motley 
had  exceeded  instructions,  56; 
fitness  to  conduct  diplomatic 
affairs,  57;  receives  Sir  John 
Rose,  58;  understanding  with 
Rose,  59;  seeks  Sumner's 
views,  60;  incident  between  — 
and  Sumner  at  dinner  party, 
61;  appointed  a  Joint  High 
Commissioner,  62;  chosen  to 
preside  at  Conference  of  the 
Joint  High  Commission,  65; 
confidence  in  Bancroft  Davis, 
71;  selects  Counsel,  73;  an- 
other selection  by,  80;  names 
Mr.  Waite,  83;  addresses  let- 
ter to  each  one  of  the  Counsel, 
84;  approves  the  text  of  the 
American  Case,  88;  Senator 
Edmunds  on  his  directing  the 
preparation  of  the  Case,  89; 
receives  daily  reports  from 
Geneva,  93;  a  few  American 
writers  on  demand  by,  for 
reparation,  137;  wise  manage- 
ment by,  138;  cables  Schenck 
no  withdrawal  of  any  part  of 
the  claim,  168;  also,  that 


434 


INDEX 


Granville's  suggestion  is  in- 
admissible, 174;  letter  to 
Schenck  from,  expresses  sur- 
prise at  intimation  of  British 
Government,  174;  replies  to 
Granville's  proposal,  175;  de- 
clares that  indirect  claims 
were  not  withdrawn,  175;  8th 
March,  1871,  read  paper  be- 
fore High  Commissioners  on 
indirect  claims,  178,  382;  ob- 
tains proof  from  all  the  Amer- 
ican High  Commissioners  that 
there  was  no  waiver  of  claim 
for  indirect  losses,  185;  daugh- 
ter of,  married  to  son  of  Sir 
Stafford  Northcote,  187;  re- 
plies to  Granville's  reasons  for 
asserting  that  the  U.  S.  waived 
the  indirect  claims,  190-194; 
home  politics,  202;  criticises 
Cockburn's  speaking  of  him- 
self as  in  some  sense  the  repre- 
sentative of  Great  Britain, 
219;  skill  in  conducting  in- 
direct claims  business,  237; 
Davis's  suggestion  to  Mr. 
Adams  communicated  to,  238; 
cables  acceptance  of  action  of 
Tribunal  as  to  indirect  claims, 
255;  cablegram  to,  "Arbitra- 
tion goes  on,"  262;  receives 
telegram  at  Boston,  263;  a 
personal  triumph,  263;  urges 
Counsel  to  secure  a  sum  in 
gross,  316;  suspects  leakage 
in  Western  Union  Telegraph 
Company's  offices,  335;  share 
of,  in  shaping  result  at  Gene- 
va, 376;  Mr.  Meredith's  resig- 
nation no  reflection  on,  388; 
held  Meredith  in  high  esteem, 
389;  approved  the  entire 
American  Case,  400;  two- 
fold duty  of,  403;  trust  of,  in 
Bancroft  Davis,  404. 


Fitzmaurice,  Lord  Edward,  Life 
of  Granville  by,  xiv. 

Florida,  The,  case  of,  to  be  first 
taken  up  by  Tribunal,  289; 
Sir  Alexander  Cockburn  ac- 
quits Great  Britain,  289; 
Staempfli  finds  Great  Britain 
wanting  in  due  diligence,  289; 
Adams  and  d'ltajuba  agree 
with  Staempfli,  289;  effect  of 
entry  of,  at  Mobile,  discussed, 
309. 

Foreign  affairs,  duty  of  demo- 
cratic government  to  inform 
people  as  to,  169. 

Foreign  Enlistment  Act,  the 
British  (of  1819),  Gushing  de- 
clares inefficient,  127;  pro- 
cedure under,  cumbrous,  154; 
made  more  rigid  in  1870,  154; 
not  preventive,  294;  execution 
of,  did  not  measure  extent  of 
England's  obligation,  295; 
construction  of,  298-300;  of- 
fence under,  not  "  building," 
but  "  equipping,"  300. 

Forney,  John  Weiss,  on  readi- 
ness of  Gushing  as  a  writer  on 
any  topic  of  foreign  relations, 
76. 

Forster,  William  Edward,  on 
Queen's  Proclamation  of  Neu- 
trality, 35;  friend  of  U.  S., 
38,  43;  on  danger  of  break 
in  Cabinet,  160;  anxious  day 
awaiting  news  from  Geneva, 
264. 

Fourth  of  July,  celebrated  at 
Geneva,  336. 

French,  Assembly,  visit  to,  104; 
society,  107;  indemnity,  en- 
tertainment to  raise  money  for 
paying,  107;  indemnity  in 
mind  of  English  taxpayers, 
frightened  at  the  indirect 
claims,  169. 


INDEX 


435 


Garrison,  William  Lloyd,  ban- 
quet to,  Earl  Russell's  speech 
at,  147. 

Geneva,  Tribunal  organized  at, 
90;  Cases  exchanged  at,  91; 
Counter-Cases  exchanged  at, 
110;  why  selected,  207;  nat- 
ural beauty  of,  208;  American 
party's  lodgings  at,  209;  Eng- 
lish party's  lodgings  at,  210; 
Hotel  de  Ville  of,  210;  in- 
scription in  Salle  d' Alabama, 
at,  211;  Fourth  of  July  cele- 
bration at,  336;  local  history 
of,  Cushing's  familiarity  with, 
337;  musical  fete  at,  338;  din- 
ner  by  Canton  of,  339;  salutes 
fired  by  Cantonal  Govern- 
ment of,  345;  Mr.  Davis  writes 
letter  of  thanks  to  officials  of, 
363;  allusion  to,  as  "  le  grain 
de  muse,"  363. 

Geneva  Cross,Convention  of  the, 
211. 

Georgia,  The,  Evarts's  oral  argu- 
ment to  strengthen  claim  in 
case  of,  304;  adverse  decision 
—  disappoints  Mr.  Davis,  305. 

Gladstone,  William  Ewart,  in- 
discreet speech  of,  at  New- 
castle, 22;  in  Commons,  30th 
June,  1863,  23-25;  apology 
for  Newcastle  speech,  24;  his 
mind,  25;  Goldwin  Smith  on, 
in  regard  to  intention  to  recog- 
nize Confederacy,  41 ;  country 
with  Russell,  rather  than 
with,  44;  in  Commons,  April, 
1872,  122;  threatened  rupture 
of  Cabinet  of,  160;  had  to 
satisfy  country  there  would 
be  no  drain  of  money  to  pay 
claims,  169;  declaration  in 
Parliament  in  regard  to  the 
indirect  claims,  172;  an  Eng- 
lish historian  on  the  discretion 


of,  173;  political  opponents  of, 
and  the  indirect  claims,  202; 
awaits  news  from  Geneva,  264; 
is  thankful,  265;  courage  of,  in 
upholding  Arbitration,  311. 

Glenn,  Sam,  newspaper  corre- 
spondent, 329. 

Grant,  Ulysses  Simpson,  Presid- 
ent, on  assuming  office  finds 
Alabama  Claims  a  disturbing 
influence,  47;  recommends 
that  Government  assume  pri- 
vate claims,  59;  appoints  Mr. 
Adams  to  be  Arbitrator,  70; 
Badeau,  a  biographer  of,  121; 
Northcote  on  Sumner's  feel- 
ing toward,  177;  candidate  for 
reelection,  202;  receives  cable- 
gram that  Arbitration  goes 
on,  263;  campaign  for  elec- 
tion of,  going  on,  334;  tribute 
of  Agent  to,  in  report  to  Mr. 
Fish,  376. 

Granville  (LevesonGower),Earl, 
Life  of,  xiv ;  writes  Lord  Rus- 
sell on  possible  offer  to  medi- 
ate, 33 ;  despatch  of  Lord  John 
Russell  toned  down,  40;  coun- 
try said  not  to  be  with,  on  arbi- 
tration, 44;  to  Bright  on  mis- 
sion of  Sir  John  Rose,  60;  in 
House  of  Lords,  122;  receives 
letters  on  subject  of  the  indi- 
rect claims,  167;  argues  that 
U.  S.  had  waived  indirect 
claims,  168;  tells  the  country, 
in  Parliament,  of  the  waiver, 
171;  informs  Schenck  that 
British  Government  hold  Tri- 
bunal cannot  decide  upon 
claims  for  indirect  losses,  173; 
suggests  that  U.  S.  undertake 
that  their  Agent  inform  Arbi- 
trators U.  S.  do  not  ask  award 
for  indirect  claims,  173;  sug- 
gestion of,  declared  by  Fish  to 


436 


INDEX 


be  inadmissible,  174;  would 
change  language  of  proposal, 
174;  reply  of  Mr.  Fish,  175; 
reasons  of,  for  asserting  a 
waiver  by  U.  S.,  189;  busily 
engaged  with  Schenck  in  try- 
ing to  save  Treaty,  201 ;  home 
politics,  202;  sends  to  Bright 
early  information  of  the  action 
of  Arbitrators,  240;  anxious 
day  of,  264;  thanks  Selborne, 
265;  letter  of  thanks  to  Mr. 
Adams,  373. 

Gray,  John  Clinton,  10. 

Greeley,  Horace,  candidate  for 
President,  Washburne  on,  98; 
campaign  of,  334. 

Guardian,  The,  Mountague  Ber- 
nard a  founder  of,  226. 

Guizot,  Frangois  Pierre  Guil- 
laume,  Gushing  calls  on,  104. 

Hackett,  Frank  Warren,  secre- 
tary to  Caleb  Gushing,  vii,  1; 
practising  law  at  Boston,  2; 
to  Minnesota,  for  health,  2; 
at  Chicago,  during  great  fire, 
3-5;  goes  to  Washington,  7; 
sails  from  New  York,  10;  at 
Brest,  14;  at  Rennes,  14-16; 
reaches  Paris,  17;  upon  list  of 
secretaries,  87;  call  on  Mr. 
and  Mrs.  Bancroft  Davis, 
95;  lodgings  at  Paris,  95;  pays 
respects  to  M.  Grevy,  and 
visits  Assembly,  104;  work  on 
Counter-Case,  106;  social  in- 
cidents in  Paris,  107;  theatres, 
108;  bearer  of  despatches  to 
London,  110;  impressions  of 
London,  111-114;  at  opening 
of  Conference,  212;  on  a  tour 
through  Switzerland  with  the 
Waites,  284;  leaves  Geneva, 
340;  visits  England  and  Scot- 
land, 365;  at  Queen's,  Oxford, 


a  guest  of  Markheim,  365; 
hears  Spurgeon,  366-71 ;  meets 
Judah  P.  Benjamin  in  London, 
371;  returns  home  in  Russia 
with  Mr.  Adams,  372;  visit  to 
Mr.  Adams  at  Quincy,  373; 
letter  to  Nation  upon  Mr. 
James  Ford  Rhodes's  criti- 
cism of  Bancroft  Davis,  395- 
402;  views  of,  as  to  "The  In- 
direct Claims  and  the  Costs  of 
Pursuit/'  403-416. 

Haddan,  Thomas  Henry,  226. 

Hale,  Charles,  Ass't  Secretary 
of  State,  262. 

Hamilton.  See  Lee-Hamilton. 

Harcourt,  Sir  William  Vernon 
("Historicus"),  writes  to  the 
Times,  on  subject  of  recogni- 
tion of  belligerent  rights  of 
Southern  Confederacy,  143; 
replied  to,  by  Mr.  George 
Bemis,  143-47;  experiences  an 
anxious  day,  264. 

Hardman,  Frederick,  of  the 
Times,  at  Geneva,  332. 

Harvard  Law  School,  Sumner 
librarian  of,  52;  Beaman's  in- 
terest in,  85;  gift  of  George 
Bemis  to,  for  professorship  of 
public  law,  148. 

Harvey  Birch,  The,  memorial  of 
loss  of  ship  is  first  that  Dept. 
of  State  received,  46. 

Hatherley,  Lord  Chancellor, 
speaks  in  House  of  Lords,  122. 

Havre,  John  Davis  takes  docu- 
ments to,  14;  Gushing  sails 
for  home  from,  100,  364. 

Hayes,  Rutherford  Birchard, 
President,  Evarts  counsel  in 
Hayes-Tilden  contest,  233; 
appoints  Evarts  Secretary  of 
State,  233. 

Herald,  New  York,  The,  enter- 
prise of,  in  London,  117;  pub- 


INDEX 


437 


lishes  confidential  documents, 
which  publication  probably 
defeated  amendment  to 
Treaty,  204;  looked  on  in 
Europe  as  the  newspaper  that 
reflected  public  sentiment  of 
America,  329;  John  Russell 
Young  at  Geneva  for,  329; 
its  force  at  Geneva,  330;  its 
bureau  at  Washington,  324; 
Sec.  Fish  suspects  its  Wash- 
ington office  of  getting  infor- 
mation from  Western  Union 
Telegraph  people,  335. 

Herefordshire,  225. 

Hildyard,  Mr.,  of  British  Lega- 
tion at  Berne,  228. 

Hill,  David  Jayne,  Minister  to 
Switzerland,  on  Staempfli,  217. 

"  Historicus."  See  Harcourt,  Sir 
William  Vernon. 

Hoar,  Ebenezer  Rockwood,  High 
Commissioner,  63;  first  chap- 
ters of  Case  submitted  to,  for 
suggestions  and  advice,  88, 
400;  on  George  Bemis,  148; 
says  there  was  no  waiver  of 
indirect  claims,  185. 

Hoey,  John,  on  Russia,  intro- 
duces passengers  to  Mr.  Ad- 
ams, 372. 

Holt-White.  Rashleigh/  corre- 
spondent of  Daily  News,  333; 
on  Mr.  Davis,  333. 

Hosmer,  George  W.,  [London 
manager  of  New  York  Herald, 
117;  at  Geneva,  329;  account 
by,  of  newspaper  men  at 
Geneva,  329-331. 

Howells,  William  Dean,  tribute, 
in  Atlantic  Monthly,  to  Ralph 
Keeler,  331. 

Iddesleigh,  Lord.  See  Northcote. 
Inculpated  cruisers  Florida,  Ala- 
bama (and  tenders),  354. 


Indirect  claims,  mentioned,  110  ; 
loss  in  transfer  of  ships  to  the 
British  flag,  the  enhanced 
payments  of  insurance,  and 
the  expenses  consequent  upon 
the  prolongation  of  the  war  — 
included  in  the  Case,  133; 
criticism  of  Mr.  James  Ford 
Rhodes  on  Bancroft  Davis,  in 
relation  to,  mentioned,  158; 
explained  and  discussed,  159- 
205;  a  political  hurricane  the 
result  of  discovering  that 
claim  for  indirect  losses  waa 
made  by  the  American  Case, 
160;  Gushing  says  "national 
claims"  a  more  fitting  term, 
161;  early  notice  given  to 
Great  Britain  of  national  in- 
juries, 161-62;  existence  well 
known  to  British  Govern- 
ment, 162;  opening  statement 
by  U.  S.,  at  meeting  of  Joint 
High  Commissioners,  de- 
scribed such  demand,  163; 
direct  losses  of  U.  S.  govern- 
ment property,  164;  London 
press  on,  165;  complaint  made 
later  of  not  being  within  the 
submission  of  the  Treaty,  166; 
Lord  Westbury  urges  Gran- 
ville  to  treat  as  not  before  the 
Arbitrators,  167;  Sir  Roundell 
Palmer's  memorandum  to  like 
effect,  167;  Sec.  Fish  cables 
Schenck  must  be  no  with- 
drawal, 168;  "spasmodic  agi- 
tation" Gushing  calls  it,  169; 
English  High  Commissioners 
have  no  very  clear  idea  of 
what  was  done  with,  170; 
Lord  John  Russell  moves  ad- 
dress to  the  Crown,  because 
of,  170;  Granville  tells  country 
that  they  have  disappeared, 
171;  Gladstone's  declaration 


438 


INDEX 


aa  to,  172;  Granville  informs 
Schenck  that  British  Gov't 
hold  that  Tribunal  cannot  de- 
cide upon,  173;  surprise  ex- 
pressed by  Mr.  Fish,  174; 
U.  S.  does  not  expect  unrea- 
sonable pecuniary  compensa- 
tion because  of,  174;  Gran- 
ville would  change  language 
of  proposal,  174;  will  better 
be  understood  by  going  back 
to  proceedings  of  Joint  Com- 
mission, 175;  Sec.  Fish's  pa- 
per of  8th  March,  178;  Brit- 
ish Commissioners  imagined 
they  had  secured  a  waiver, 
181;  Northcote's  explanation 
to  Disraeli,  181;  expression 
of  regret  balancing  the  com- 
plaint of  national  wrong,  182; 
loose  and  vague  language  of 
Northcote,  182;  thought  by 
Sir  Stafford  Northcote  to  be 
out  of  the  way,  183;  in  speech 
at  Exeter  he  positively  asserts 
that  U.  S.  had  waived,  183-84; 
Mr.  Fish  obtains  proof  (in 
addition  to  his  own  state- 
ment) U.  S.  did  not  waive, 
185;  explanation  by  Sir  Staf- 
ford, lately  come  to  light,  of 
what  was  done  by  High  Com- 
missioners, 187;  Granville's 
reasons  for  asserting  that  U. 
S.  had  waived,  189;  reply  to 
these  reasons,  190-194;  Bout- 
well  tells  Adams  of  Mr.  Fish's 
desire  in  respect  to,  194;  re- 
ported impression  in  Europe 
that  England  is  not  sincere 
with  respect  to,  199;  Davis 
agrees  to  Tenterden's  pro- 
posal (April  15),  that  each 
write  unofficially  to  chief, 
suggesting  whether  possible 
for  Arbitrators  to  come  to- 


gether in  advance  of  15th 
June,  and  consider  question  of, 
201 ;  home  politics  have  rela- 
tion to  question  of,  202 ;  Treaty 
in  peril,  202;  in  order  to  get 
rid  of,  Great  Britain  suggests 
amendment  to  Treaty,  203; 
amendment  proposed  by  Great 
Britain,  203;  tried  and  fails  at 
Washington,  204;  question  of, 
causes  uncertainty  as  to  what 
would  be  done  on  opening  day, 
at  Geneva,  205;  intense  anx- 
iety at  opening  of  Tribunal, 
235;  Mr.  Davis  had  suggested 
to  Mr.  Adams  that  Tribunal 
should  pass  on  question  of,  in 
advance  of  the  other  claims, 
238;  same  thought  had  oc- 
curred to  Mr.  Adams,  238;  ne- 
gotiations detailed  that  led  to 
a  declaration  by  Tribunal  that 
they  do  not  constitute  good 
foundation  for  an  award,  239- 
53;  statement  announced  by 
Sclopis,  254;  protocol  of  4th 
May,  1871,  showing  action  by 
American  High  Commission- 
ers, 8  March,  1871,  in  relation 
to,  381-387;  text  of  Sclopis 
announcement,  393-95;  Mr. 
Rhodes's  strictures  on  Ban- 
croft Davis,  because  he  in- 
cluded them  in  Case,  examined, 
and  replied  to,  400. 

Interest,  Sir  Roundell  Palmer's 
argument  on,  320;  Counsel  for 
U.  S.  argues  in  favor  of,  321 ; 
six  per  cent  appears  to  have 
been  allowed,  321. 

Interlaken,  officials  visit,  by  in- 
vitation of  Swiss  Government, 
340. 

Itajuba.    See  d'ltajuba. 

Johnson,     Andrew,     President, 


INDEX 


439 


sends  Johnson-Clarendon  Con- 
vention to  Senate,  49. 

Johnson-Clarendon  Convention 
sent  to  the  Senate, 49;  rejected, 
49;  Sumner's  speech  on,  50. 

Johnson,  Mr.,  109. 

Johnson,  Reverdy,  Minister  to 
England,  48;  signs  with  Lord 
Clarendon  a  Convention,  14th 
Jan.,  1869,  49. 

Joint  High  Commission,  crea- 
tion of,  agreed  to  by  two 
Governments,  62;  the  British 
members  of,  62;  American 
members  of,  63;  British  Com- 
mission hospitably  received 
at  Washington,  63;  organized, 
63;  Home  Government  ap- 
pear to  annoy  British  Com- 
mission, 64;  Mr.  Fish  chosen 
to  preside,  65;  sign  Treaty,  66; 
reason  why  Commissioners  of 
high  rank  were  sent  over  by 
Great  Britain,  175;  American 
members  unite  in  stating  that 
there  was  no  waiver  of  claim 
for  indirect  losses,  185. 

Junius,  materials  for  book  on, 
collected  by  Sir  Alexander 
Cockburn,  221 ;  alluded  to,  357. 

Keeler,  Ralph,  magazine  writer, 

at  Geneva,  331;  his  sad  fate, 

331. 
Keene,   Francis  Bowler,   U.   S. 

Consul  at  Geneva,  211. 
Kelly,  Moses,  230. 
Kirby,  Governor,  16. 
Kirk,  silver  from,  presented  to 

neutral  Arbitrators  by  U.  S., 

375. 

Lairds,  shipbuilders  in  England, 

48. 
Lancashire  towns  feel  need  of 

cotton  supply,  23. 


Lang,  Andrew,  Life,  Letters,  and 
Diaries  of  Sir  Stafford  North- 
cote,  First  Earl  of  Iddesleigh, 
by,  xiii,  64. 

Langley,  Fitzroy,  British  Sec- 
retary, at  opening  of  Confer- 
ence, 212;  mentioned  by  Lord 
Selborne,  226. 

Lawrence,  Abbott,  Minister  at 
St.  James's,  Bancroft  Davis 
Secretary  of  Legation  under, 
71. 

Lawrence,  William  Beach,  first 
chapters  of  Case  submitted 
to,  for  suggestions  and  advice, 
88. 

"  Lay,"  share  of  oil  and  bone,  in 
lieu  of  wages,  to  crew  of  whal- 
ers, 319. 

Lee-Hamilton,  Eugene,  British 
Secretary  at  opening  of  Con- 
ference, 212;  death  of,  226; 
mentioned  by  Lord  Selborne, 
227;  sonnets  of,  227-28;  work 
as  Secretary  praised  by  Ten- 
terden  and  Sir  Roundell 
Palmer,  228. 

Le  Sage,  Mr.,  correspondent  of 
Daily  Telegraph,  330. 

Lewis,  Sir  George  Cornwell,  helps 
to  keep  England  neutral, 
27. 

Lincoln,  Abraham,  President, 
Mr.  Balch  has  interview  with, 
on  subject  of  International 
Court  of  Arbitration,  48. 

London,  in  1872,  description  of 
visit  to,  114-122;  Thames 
Tunnel,  123;  Legation  of  U.  S. 
at,  123. 

Lords,  House  of,  122. 

Lorimer,  Prof.  James,  on  Balch's 
letter  (May,  1865),  recom- 
mending International  Court 
of  Arbitration,  48. 

Lowe,  Sir  Robert,  Chancellor  of 


440 


INDEX 


the  Exchequer,  on  Cockburn's 
opinion,  361. 

Lowell,  James  Russell,  "the 
gentlemen  of  the  country,"  30. 

Lyman,  David  Brainerd,  3. 

Lyons,  Richard  Bickerton  Pem- 
ell,  Viscount,  British  Minister 
at  Washington,  Lord  John 
Russell  to,  May  6,  1861,  de- 
ploring the  disruption  of  the 
United  States,  146. 

McCreery,  Thomas  Clay,  Sen- 
ator from  Kentucky,  alone 
votes  for  the  Johnson-Clar- 
endon Convention,  49. 

MacDonald,  Sir  John,  Rose  has 
confidence  of,  60;  High  Com- 
missioner, 62. 

MacGahan,  Januarius  Aloysius, 
correspondent  at  Geneva  of 
New  York  Herald,  330. 

Macon,  American  party  rest  at, 
205. 

Madrid,  Mr.  Gushing  at,  232. 

Mann,  Ambrose  Dudley,  repre- 
sentative of  Confederacy  in 
London,  34. 

Map,  in  Case,  showing  proximity 
of  Nassau  (N.  P.),  to  Charles- 
ton and  Savannah,  89. 

Markheim,  H.  W.  G.,  British 
Secretary,  present  at  opening 
Conference,  212;  mentioned 
by  Lord  Selborne,  227;  sketch 
of,  228;  books  and  transla- 
tions by,  228;  letter  on  result 
of  the  Arbitration,  362;  visited 
at  Queen's,  Oxford,  385. 

Marsh,  George  Perkins,  Minister 
to  Italy,  consulted  as  to  print- 
Ing  Case  in  Italian,  90. 

Marshall,  John,  78. 

Mason,  James  Murray,  Confed- 
erate Commissioner  to  Eng- 
land, 21. 


Melbourne,  the  Shenandoah  at, 
308. 

Meredith,  William  Morris,  se- 
lected for  Counsel,  73 ;  attain- 
ments and  character,  74;  con- 
sults Bancroft  Davis,  74;  re- 
signs on  account  of  health,  75; 
reasons  for  resignation  ex- 
amined, 388-392. 

Merle  d'Aubigne,  209. 

Metcalf,  Theron,  remark  on 
ascertaining  law  of  damages, 
197. 

Mill,  John  Stuart,  friend  of  U.  S., 
43. 

Mir,  M.,  young  avocat  at  Paris, 
converses  daily  with  Mr.  Gush- 
ing, 124. 

Mitchell,  James  Tyndale,  Chief 
Justice  of  Pa.,  on  Meredith, 
390. 

Mobile,  entry  of  the  Florida  at 
port  of,  308. 

Moran,  Benjamin,  First  Secre- 
tary at  London,  123. 

Moreau,  M.,  French  lawyer,  on 
the  American  Case,  399. 

Morley,  John,  Life  of  Gladstone 
by,  xix;  characterizes  Treaty 
of  Washington  and  Geneva 
Arbitration  as  notable  victory 
of  preventive  diplomacy,  etc., 
376. 

Morning  Post,  The,  comment  by, 
on  American  Case,  166. 

Morse,  John  Torrey,  Jr.,  article 
on  "  Contraband  of  War,"  298. 

Morton,  Levi  Parsons  (Morton, 
Rose  &  Co.),  London  bank- 
ing house  of,  57. 

Munroe,  John,  banker  at  Paris, 
entertains  American  party, 
100. 

Musical  fete  at  Geneva,  338. 

Nabuco,  Joaquim,  Brazilian  Am- 


INDEX 


441 


bassador  to  the  U.  S.,  on  the 
younger  d'ltajuba,  218. 

Nation,  The,  letter  to,  of  Mr. 
Hackett,  Jan.  31,  1907,  on 
Mr.  Rhodes  and  the  Alabama 
Claims,  mentioned,  158;  letter 
to,  reprinted  in  Appendix  iv, 
396-402. 

Nelson,  Samuel,  Associate  Just- 
ice of  Supreme  Court  of  U.  S., 
High  Commissioner,  63;  dis- 
avows waiver  of  demand  for 
indirect  losses,  185. 

New  England,  feeling  in,  against 
England,  down  to  the  time  of 
war  for  the  Union,  28. 

Neutrality  of  Great  Britain  during 
the  American  Civil  War,  by 
Mountague  Bernard,  xi;  schol- 
arly work,  155;  further  men- 
tioned, 225. 

Newspapers,  of  Europe,  Ameri- 
can Agent  watching,  93;  takes 
care  that  continental,  cor- 
rectly report  the  American 
Case,  93;  certain  American, 
manifest  disquiet  over  Eng- 
land's alarm  from  indirect 
claims,  168;  reporters  of, 
anxiously  waiting,  235;  re- 
porters of,  attempt  to  inter- 
view Gen.  Gushing,  326;  self- 
restraint  of,  327;  ingenuity  of 
reporters  of,  to  send  news,  328; 
representatives  at  Geneva, 
329-33;  Swiss  Times  at  Gen- 
eva, 332;  at  Washington,  the 
New  York  Herald  Bureau, 
334-36. 

New  York  Herald,  The.  See 
Herald,  New  York. 

Nicaragua,  conduct  of  U.  S.  as 
a  neutral  toward,  defended, 
153. 

Nice,  France,  148. 


Nillson,  Christine,  at  circus  per- 
formance at  Geneva,  276. 

North  American  Review,  The, 
article  in,  by  Beaman,  on 
"Belligerent  War  Vessels," 
85. 

Northcote,  Sir  Stafford,  efforts 
to  keep  England  neutral,  27; 
High  Commissioner,  62;  with 
his  son,  arrives  in  New  York, 
63;  Life,  Letters  and  Diaries  of, 
64;  complains  of  Home  Gov- 
ernment's interference,  64;  en- 
joys Washington,  65;  de- 
scribes scene  at  signing  of  the 
Treaty,  66;  deceives  himself 
by  thinking  indirect  claims 
waived  by  American  Com- 
missioners, 172;  writes  to 
Disraeli  about  Treaty,  181; 
speech  at  Exeter,  asserting 
that  British  Commissioners 
understood  indirect  claims 
had  been  waived,  183-184; 
copy  of  speech  of,  sent  to 
American  Commissioners,  185; 
misconception  by,  186,  192; 
son  of,  married  to  daughter  of 
Mr.  Fish,  187;  letter  to  Gran- 
ville  on  action  of  British  Com- 
missioners, 187. 

Noyes,  John  Humphrey,  330. 

O'Conor,  Charles,  Evarts  shares 
leadership  of  New  York  Bar 
with,  82. 

Olinda,  d'ltajuba,  Professor  at 
Law  School  of,  217. 

Oliphant,  Laurence,  correspond- 
ent of  the  Times  at  Geneva, 
329. 

Oneida  Community,  330. 

Over-Ross,  Hertfordshire,  225. 

Oxford,  Queen's  College,  visit  to 
Markheim  at,  365. 


442 


INDEX 


Palais  Electoral,  Geneva,  ball 
at,  339. 

Palmer,  "  Eddie,"  363. 

Palmer,  Lady  Laura,  finds  Gen- 
eva noisy,  210;  and  daughter 
greatly  liked,  275;  attends 
final  ceremonies,  341. 

Palmer,  Sir  Roundell  (Lord  Sel- 
borne),  pronounces  the  Amer- 
ican Case  "  acrimonious  in 
tone,"  134;  assists  Bernard  in 
preparing  British  Case,  149; 
contrasts  British  Case  with 
American,  151;  his  criticism 
commented  upon,  152;  on 
Bernard,  155;  writes  Gran- 
ville  on  indirect  claims,  167; 
memorandum  by,  to  show 
that  only  direct  losses  were 
comprehended  in  the  reference 
to  Arbitration,  167;  present  at 
opening  Conference,  212;  on 
d'ltajuba,  217;  on  Sir  Alex- 
ander Cockburn,  222;  sketch 
of,  224;  praises  Lee-Hamil- 
ton's work  as  Secretary,  228; 
Evarts  to  see,  as  to  procedure, 
240;  expects  Conference  to 
adjourn,  so  he  can  return  im- 
mediately to  England,  241; 
three  points  stated  by,  243; 
counter-draft  by,  of  form  of 
declaration  by  Arbitrators, 
253;  account  by,  of  procedure 
that  ended  the  indirect  claim 
trouble,  253-54;  complains  of 
Arbitrators  not  allowing  whole 
case  to  be  argued,  271;  per- 
sonal appearance  of,  272;  wife 
and  daughter  of,  275;  friend- 
ship with  Evarts,  277;  visited 
in  England  by  Mr.  and  Mrs. 
Evarts,  278;  exaggerated  idea 
entertained  by,  as  to  superi- 
ority of  his  countrymen,  282; 
under  head  of  "  due  diligence," 


argues  on  many  topics,  293; 
brief  of,  293;  treatment  of  the 
Three  Rules,  297;  defends 
Foreign  Enlistment  Act,  298- 
300;  supplementary  argument 
by,  303;  able  argument  by,  in 
case  of  Shenandoah,  308; 
argues  question  of  effect  of 
entry  by  Florida  into  port  of 
Mobile,  309;  argument  on  in- 
terest, 320;  loyal  service  of, 
346;  demeanor  on  announce- 
ment of  the  decision  and 
award,  347;  comment  on  re- 
sult, 347. 

Palmerston,  Henry  John  Tem- 
ple, Viscount,  cautions  Glad- 
stone, 22;  is  contemplating 
an  offer  of  mediation,  23; 
holds  his  tongue,  where  Glad- 
stone speaks,  24;  policy  of,  33; 
traditions  of,  44;  quoted  by 
Gushing,  128;  defended  by 
Cockburn  in  Don  Padfico 
affair,  221. 

Paris,  arrival  at,  17;  our  work  at, 
95-130;  siege  of,  98;  American 
residents  of,  100;  our  rooms 
for  work  at,  103;  lodgings  of 
members  of  our  party  at,  104; 
social  entertainments  of,  107; 
catacombs  of,  108;  theatres, 
108-09;  printers  at,  129;  our 
party  leaves,  205. 

Paul,  Herbert,  on  Gladstone's 
lack  of  discretion,  173;  His- 
tory of  England  by,  cited, 
351. 

Peddrick,  William  Fayette,  sec- 
retary to  Mr.  Evarts,  88; 
works  on  Counter-Case,  106; 
at  opening  of  Conference, 
212. 

Pennsylvania  Bar  Ass'n,  389. 

Pernambuco,  217. 

Perth,  365. 


INDEX 


443 


Philadelphia  Bar,  the,  389. 

Phillimore,  Sir  Robert,  extracts 
from,  in  American  Case  as- 
signed as  reason  why  further 
British  argument  should  be 
allowed,  296. 

Philp  residence,  Washington, 
occupied  by  British  Commis- 
sioners, 63. 

Photographs,  group  of  Ameri- 
can party  taken,  362;  of  Eng- 
lish party,  363. 

Pierce,  Edward  Lillie,  in  Life  of 
Sumner,  quotes  remark  of  Sir 
Frederick  Bruce  as  to  Great 
Britain's  refusing  to  arbitrate, 
47. 

Pierce,  Franklin,  President, 
Gushing  Attorney-General  in 
Cabinet  of,  77. 

Pleadings,  the,  131-58. 

Polk,  James  Knox,  President, 
appoints  Gushing  a  brigadier- 
general  of  volunteers,  in  Mexi- 
can War,  9. 

Porrentruy,  District  of,  223. 

Portsmouth,  N.  H.,  9,  373. 

Portugal,  Mr.  Moran,  Minister 
to,  123;  conduct  of  U.  S.  to- 
ward, as  a  neutral,  criticised, 
150;  criticism  replied  to,  152. 

Press,  English  and  American,  at 
Geneva,  326-29;  high  char- 
acter of,  327;  representatives 
of,  329  ff .  See  New  York  Her- 
ald. 

Press  of  London,  on  Southern 
Confederacy,  25,  26;  on  Amer- 
ican Case,  165-66  ;  attacks 
indirect  claims,  169;  excited 
language  of,  referred  to  by 
Mr.  Fish,  174;  representatives 
of,  at  Geneva,  328-33. 

Preston,  Herbert  A.,  assistant 
at  Washington  Bureau  of 
N.  Y.  Herald,  334. 


Printing,  Case  in  French  and 
Spanish,  90;  Counter-Case 
lithographed,  106;  John  Davis 
goes  to  London,  and  brings 
back  English  compositors,  129; 
Evarts's  argument  taken  to 
Paris  for  French,  and  to  Lon- 
don, for  English,  304. 

Protocol  of  Conference,  Agent 
of  U.  S.  signs  first  in  order, 
252. 

Punch,  on  Secession,  20. 

Pursuit,  costs  of,  rejected  by 
Tribunal,  313;  amount  of,  314; 
subject  discussed,  403-16. 

Putnam,  Israel,  Gen.,  263. 

Quai  des  Eaux  Vives,  Geneva, 
209. 

Quarterly  Review,  The,  on  Gen- 
eva verdict,  350;  its  views 
examined,  351. 

Queen's  College,  Oxford,  visit 
to,  365. 

Rabagas,  political  play,  at  Paris, 
109. 

Ramsay,  Edward  Bannerman, 
Dean,  at  Edinburgh,  365. 

Read,  George,  portrait  of,  101. 

Read,  John  Meredith,  Consul- 
Gen,  at  Paris,  advises  French 
artist,  101;  dinner  given  by, 
109. 

Rhodes,  James  Ford,  unjust  to 
Grant,  in  account  of  San 
Domingo  scheme,  61;  stric- 
tures on  Bancroft  Davis,  sub- 
ject of  a  reply  letter  to  the 
Nation,  158;  letter  to  Nation 
reprinted,  396-402. 

Ripon,  Lord  de  Grey.  See  De 
Grey. 

Root,  Elihu,  Secretary  of  State, 
240. 

Rose.  Sir  John,  visits  Washing- 


444 


INDEX 


ton,  57;  later,  at  Washington 
with  authority  to  propose 
negotiations,  59;  Granville  on, 
60. 

Rost,  Pierre  Adolph,  representa- 
tive of  Southern  Confederacy 
abroad,  34. 

Rubens,  16. 

Rublee,  Horace,  U.  S.  Minister 
to  Switzerland,  presides  at 
banquet,  337. 

Ruggles,  Samuel  Bulkley,  told 
by  Mr.  Fish  that  England 
promised  to  await  arrival  of 
Mr.  Adams,  34. 

Rules,  The  Three,  68;  Lord  John 
Russell  moves  address  to  the 
Crown  against,  170;  discussed 
by  Sir  Roundell  Palmer,  297; 
whether  new,  or  only  declara- 
tory of  principles  already  ex- 
isting, question  as  to,  297-98. 

Russell,  Lord  John,  Life  of,  xiii; 
appears  to  favor  the  South, 
21;  thinks  time  approaching 
to  offer  mediation,  23;  policy 
of,  33;  asks  Mr.  Dallas  to  call 
at  his  house,  and  tells  him  of 
Confederate  envoys,  34;  de- 
clines to  make  reparation,  38; 
incident  in  Cabinet  as  to  de- 
taining cruiser,  should  she 
visit  an  English  port,  39; 
despatch  of,  toned  down,  40; 
in  society  expressed  dislike  of 
the  U.  S.,  40;  admits  escape 
of  Alabama  was  his  fault,  40; 
notified  of  burning  of  the 
Harvey  Birch,  46;  to  Lord 
Lyons,  on  disruption  of  the 
Union,  146;  magnanimous 
speech  at  Garrison  banquet, 
147;  in  Nov.,  '62,  notified  that 
U.  S.  would  claim  damages  for 
national  injuries,  161;  like 
notice,  March,  '65, 162;  moves 


address  to  Crown,  not  to 
ratify,  etc.,  170;  notice  of  mov- 
ing address  for  suspension  of 
proceedings,  203;  not  pleased 
that  arbitration  goes  on,  265; 
exponent  of  feeling,  by  Eng- 
lishmen, of  superiority  to  for- 
eigners, 281. 

Russia,  the  chance  that  Great 
Britain  might  go  to  war  with, 
hastened  settlement  of  Ala- 
bama Claims,  176. 

St.  Paul,  Minn.,  2,  3;  Evening 
Dispatch  of,  5. 

Salle  des  Conferences,  in  Hotel  de 
Ville,  Geneva,  210;  since  1872 
called  Salle  de  I' Alabama,  210; 
inscription  on  tablet  in,  211; 
of  room,  211;  visits  of  tourists 
to,  211. 

Salute,  national,  fired  on  an- 
nouncement of  award,  345. 

San  Domingo  Treaty,  cause  of 
strained  relations  between 
Grant  and  Sumner,  59;  Mr. 
Rhodes  on,  61. 

Sanderson,  Thomas  (now  Lord 
Sanderson),  British  Secretary 
present  at  opening  of  Con- 
ference, 212;  Under-Secretary 
Foreign  Office,  retired  as  Sir 
Thomas,  226;  mentioned  by 
Lord  Selborne,  227;  on  extent 
of  work  by  British  secretaries, 
271-72. 

Sardou,  Victorien,  Rabagas  of, 
109. 

Sauer,  Dr.  George,  correspond- 
ent of  New  York  Herald,  329- 
30. 

Savile  Club,  362. 

Say,  Le"on,  109. 

Schenck,  Robert  Gumming, 
High  Commissioner,  63;  Min- 
ister to  Great  Britain,  63;  con- 
fers at  Paris  with  Agent  and 


INDEX 


445 


Counsel,  101;  Counter-Case 
despatched  to,  110;  powers  of 
conversation,  121 ;  general 
during  war  for  Union,  122; 
cables  Fish  London  journals 
demand  withdrawal  of  indi- 
rect claims,  168;  Granville 
informs  him  that  British  Gov- 
ernment holds  Tribunal  can- 
not decide  upon  indirect 
claims,  173;  cables  to  Fish  sug- 
gestion of  Granville,  173 ; 
Granville  would  change  lan- 
guage of  proposal,  174;  writes 
Mr.  Fish  that  indirect  claims 
were  not  waived  by  American 
High  Commissioners,  185 ;  kept 
busy  day  and  night,  201;  skill 
displayed  in  conduct  of  indi- 
rect claims  business,  237;  Mr. 
Adams  refers  to  efforts  of, 
246;  says  Cockburn's  conduct 
helps  case  of  U.  S.,  292;  says 
England  is  sore  at  being  made 
to  pay,  317. 

Sclopis,  Frederick,  Count,  of 
Italy,  appointed  Arbitrator, 
70;  chosen  to  preside,  91;  on 
conduct  of  British  Ministry, 
143 ;  says  Davis,  the  author  of 
American  Case,  gained  vic- 
tory for  the  U.  S.,  149,  399; 
on  alleged  unfriendly  animus 
of  British  Government,  158; 
personal  appearance,  213; 
sketch  of,  215;  announces  con- 
clusion arrived  at  by  Arbi- 
trators in  regard  to  indirect 
claims,  254;  declaration,  not 
judgment,  261 ;  declares  claims 
for  indirect  losses  excluded, 
262;  opening  address,  262; 
fond  of  society,  273;  Cock- 
burn's  opinion  of,  281;  speech 
at  dinner  given  by  Canton  of 
Geneva,  339;  address  at  final 


adjournment,  343;  presents 
to,  from  the  two  Govern- 
ments, 374. 

Sclopis,  Countess,  question  put 
by,  to  Mr.  Gushing,  273;  at 
final  conference,  341;  enter- 
tains Mr.  and  Mrs.  Davis, 
375. 

Secretaries,  American,  87;  Brit- 
ish, 212;  hard  work  of  British, 
226. 

Seilhamer,  George  O.,  charge  of 
Washington  Bureau  of  New 
York  Herald,  334. 

Selborne,  Earl  of.  See  Palmer, 
Sir  Roundell. 

Semmes,  Capt.  Raphael,  com- 
mander of  the  Alabama,  45. 

Senate  of  U.  S.,  attempt  by,  to 
amend  Treaty,  204. 

Seward,  William  Henry,  Secre- 
tary of  State,  Trent  despatch, 
40;  ambitious  to  settle  Ala- 
bama Claims,  49;  name  as  can- 
didate for  President  presented 
by  Evarts,  in  Convention  of 
'60,  82;  despatches  of,  pro- 
nounced "  acrimonious  "  by 
Capt.  Bullock,  135;  on  Thur- 
low  Weed,  274. 

Shenandoah,  The,  case  of,  taken 
up,  308;  England  found  liable 
for  her  depredations  after 
leaving  Melbourne,  309. 

Sherman,  Roger,  ancestor  of  Mr. 
Evarts,  portrait  of,  101. 

Sherman,  William  Tecumseh, 
French  artist  astonished  at, 
102;  visits  Geneva,  279;  inci- 
dent of  an  irate  Englishman, 
279. 

Sherman,  Thomas  Ewing,  279. 

Sickles,  Daniel  Edgar,  Maj.-Gen. 
U.  S.  A.,  calls  on  American 
party  at  Paris,  101 ;  at  Cush- 
ing's  dinner  (1874),  337. 


446 


INDEX 


Slavery  in  U.  S.,  how  viewed  by 
English  people,  29. 

Slidell,  John,  Confederate  Com- 
missioner to  France,  21. 

Smith,  Albert,  lecturer  on  the 
Alps,  207. 

Smith,  Goldwin,  on  attitude  of 
British  Government,  41. 

Solicitor  for  the  U.  S.,  office 
created  in  Dept.  of  State  to 
arrange  and  classify  private 
claims,  84;  Charles  C.  Bea- 
man  appointed,  84;  work  of, 
complimented,  319. 

Spain,  conduct  of  U.  S.  as  neu- 
tral towards,  criticised,  150; 
criticism  replied  to,  152. 

Spurgeon,  Charles  Haddon,  Bap- 
tist preacher,  account  of  his 
preaching,  at  "Tabernacle," 
365-71. 

Staempfli,  Jacques,  of  Switzer- 
land, named  as  Arbitrator,  70; 
description  of,  213;  sketch  of 
life  of,  215;  character  of,  216; 
does  not  appear  in  society, 
273;  Cockburn's  opinion  of, 
281;  proposes  plan  of  pro- 
cedure, 284 ;  declares  his  mind 
made  up,  285;  his  plan  fol- 
lowed, 286;  the  first  to  express 
an  opinion,  289;  plan  opposed 
by  Cockburn,  290;  thinks  costs 
of  pursuit  allowable  as  a  direct 
loss,  313;  work  in  computing 
damages,  323;  signs  award, 
341;  on  supply  of  coal,  349; 
present  to,  of  silver,  374. 

Stanhope,  Philip,  109. 

Stedman,  Edmund  Clarence, 
Victorian  Anthology  by,  227. 

Stephen,  Leslie,  on  feeling  of 
Englishmen,  during  the  war, 
towards  the  U.  S.,  31. 

Stevens,  Benjamin  Franklin, 
absurd  story  of  how  he  "  saved 


the  Treaty,"  91-93;  agent  of 
U.  S.,  London,  122. 

Stone,  Eben  Francis,  describes 
personal  appearance  of  Gush- 
ing, 8-9;  on  Cushing's  readi- 
ness to  write  on  foreign  affairs, 
76;  on  Gushing  as  a  lawyer,  78. 

Sumner,  Charles,  on  Queen's 
Proclamation  of  Neutrality, 
37;  Sir  Frederick  Bruce's  re- 
mark to,  47;  chairman  of  For- 
eign Relations  Committee  of 
the  Senate,  50;  "  great  speech" 
of,  50-51;  treatment  of  the 
Alabama  Claims,  51-53;  intol- 
erant, 52;  not  a  lawyer,  52; 
differs  from  Grant,  54;  re- 
quests appointment  of  Mot- 
ley as  Minister  to  England, 
55;  views  are  reflected  by 
Motley  at  London,  56;  San 
Domingo  Treaty,  59;  says 
Great  Britain  must  withdraw 
flag  from  Canada,  60;  re- 
moved from  chairmanship,  61 ; 
refuses  to  shake  hands  with 
Mr.  Fish,  61;  Grant's  opinion 
of,  62;  appoints  Beaman  his 
private  secretary,  85;  evil 
influence  of  speech  of,  176; 
Northcote  writes  of  talk  with, 
177;  effect  of  his  indictment  of 
Great  Britain,  178. 

Tabernacle,  the,  London,  366. 

Tacony,  The,  England  held  li- 
able, 309. 

Talleyrand  de  Perigord,  Charles 
Maurice,  on  Geneva,  208. 

Taylor,  Zachary,  President,  Mr. 
Meredith  Secretary  of  Treas- 
ury in  Cabinet  of,  74. 

Tennyson,  Alfred,  calls  at  Amer- 
ican Legation,  202. 

Tenterden,  Lord  (Charles  Au- 
brey Stuart),  Secretary  of 


INDEX 


447 


Joint  High  Commission,  62; 
skill  and  fidelity,  72;  confid- 
ence in,  by  Bancroft  Davis, 
72;  unreserve  of,  at  Geneva, 
110;  assists  in  preparing  Brit- 
ish Case,  149;  requests  Davis 
to  take  steps  to  have  new 
Arbitrators,  199;  desires  to 
proceed,  200;  forecasts  the 
decision,  200;  agrees  with 
Davis  on  plan  to  overcome 
deadlock,  201;  at  opening, 
15th  June,  212;  praises  Lee- 
Hamilton's  work  as  Secretary, 
228;  instead  of  presenting 
Argument,  submits  note,  237; 
asks  adjournment  for  eight 
months,  237;  tells  Davis  in- 
structions are  positive,  241; 
after  interview  with  Davis, 
changes  language  of  note  to  be 
laid  before  Arbitrators,  257- 
60;  statement  by,  after  Arbi- 
trators had  announced  their 
conclusions,  261;  files  British 
Argument,  262;  asks  Tribunal 
to  grant  leave  to  Sir  Roun- 
dell  Palmer  for  further  argu- 
ment, 270;  personal  appear- 
ance of,  273;  complains  of 
others  than  Englishmen  at 
Geneva,  281;  but  rises  above 
prejudice,  282;  says  of  Adams, 
283;  of  Davis,  283;  on  after- 
dinner  speaking,  339;  re- 
spected by  all,  346;  with 
Davis  accomplished  great  re- 
sult, 481. 

Tenterden,  Lady,  275. 

Terceira,  case  of  the,  had  set- 
tled opinion  in  England,  Bruce 
said,  against  paying  for  Ala- 
bama, 48;  cited  by  Adams, 
305. 

Thames  Tunnel,  a  boy's  marvel 
at,  122. 


Thayer,  Samuel  Richard,  7. 

Thiers,  Louis  Adolphe,  Mr. 
Gushing  calls  on,  104. 

Thornton,  Sir  Edward,  British 
Minister  at  Washington,  his 
popularity  and  faithful  serv- 
ice, 58;  Rose  to  do  at  Wash- 
ington what  is  difficult  for  — 
to  do,  60;  High  Commissioner, 
62;  informed  by  Lord  Claren- 
don that  Motley  said  Presid- 
ent abstained  from  speaking 
of  national  injuries,  162;  con- 
struction of  8th  March  paper 
read  by  Mr.  Fish,  186;  for  a 
season,  busy  day  and  night, 
201. 

Three  Rules,  the,  68;  discussed, 
297;  whether  formulated  new 
principles  or  not,  297-300; 
subject  of  argument  by  Sir 
Roundell  Palmer,  297. 

Tichborne  trial,  presided  over 
by  Lord  Chief  Justice  Cock- 
burn,  221. 

Tiffany,  Mr.,  109. 

Tiffany  (New  York),  silver  from, 
presented  by  U.  S.,  to  neutral 
Arbitrators,  375. 

Tilden,  Samuel  Jones,  Evarts 
of  counsel  in  Hayes-Tilden 
Presidential  contest,  233. 

Times,  The,  Bancroft  Davis,  N. 
Y.  correspondent  of,  71;  let- 
ters of  "  Historicus"  to,  143; 
representative  of,  at  Geneva, 
332;  on  the  result,  347. 

Trent,  The,  Mason  and  Slidell 
taken  from,  by  Capt.  Wilkes, 
31;  N.  Y.  merchants  consult 
Gushing  in  regard  to,  78. 

Tribunal,  the,  organized  by  the 
choice  of  Count  Sclopis  to 
preside,  91;  second  Conference, 
109;  third  and  all-important 
Conference,  212;  personal  ap- 


448 


INDEX 


pearance  of  the  five  Arbitrat- 
ors, 212;  Sclopis,  213;  Staem- 
pfli,  213;  d'ltajuba,  213; 
Adams,  213;  Cockburn,  214; 
sketches  of  members  of:  — 
Sclopis,  215;  Staempfli,  215- 
17;  d'ltajuba,  217-18;  Adams, 
219-20;  Cockburn,  220-23; 
Favrot,  Secretary  of,  223-24; 
Palmer,  224;  Bernard,  224-26; 
a  court  possessing  the  features 
of  a  quasi-diplomatic  body, 
236;  adjourned  for  two  days, 
237;  members  of,  not  sworn, 
288;  not  bound  to  follow  prac- 
tice of  any  court,  English  or 
American,  288;  Sir  Alexander 
Cockburn's  show  of  temper, 
290;  yields  to  British  Arbitra- 
tor, and  allow  further  argu- 
ment, 292;  reason  therefor, 
293;  Sir  Alexander's  conduct 
provokes  criticism,  293;  suf- 
ficently  enlightened  as  to 
Shenandoah,  308;  findings  of, 
309;  requests  parties  to  pre- 
pare tables  of  figures,  318; 
exciting  incident,  322;  pre- 
pared draft  of  decision  in 
French,  324;  final  Conference, 
341;  farewell  address  of  the 
presiding  officer,  343;  text  of 
award  of,  347. 

Trochu,  Louis  Jules,  Gen.,  in 
French  Assembly,  104. 

Turin,  David  Dudley  Field  calls 
on  Sclopis  at,  149;  Mr.  and 
Mrs.  Davis  visit,  275. 

Twscaloosa,  The,  England  liable 
for,  309. 

Tuttle,  Herbert,  correspondent  of 
Boston  Daily  Advertiser,  327, 
329;  on  closing  scenes,  346. 

Unfriendly  course  of  Great  Brit- 
ain, 139;  regret  expressed  in 


Treaty,  139-140;  precipitate 
recognition  of  belligerency, 
141;  Sclopis  thinks  animus  of 
Ministry  not  hostile,  158. 
United  States,  Punch  on  Seces- 
sion, 20;  Lord  John  Russell's 
dislike  of,  40;  friends  of,  in 
England,  43;  charge  that 
they  were  not  diligent  in  duty 
as  a  neutral  toward  Spain  and 
Portugal,  150;  are  usually 
neutral,  255,  403;  allusion  to 
fact  that  they  could  do  as  they 
saw  fit  with  Geneva  award 
fund,  353;  in  dual  form  of  gov- 
ernment similar  to  Switzer- 
land, 364;  History  of,  by 
James  Ford  Rhodes,  61,  396. 

Van  Buren,  Martin,  Mr.  Adams 
on  ticket  with,  in  1848,  219. 

Vignaud,  Henry,  translates 
Counter-Case  into  French, 
106;  on  Evarts's  sentences, 
125. 

Ville  de  Havre,  The,  11. 

VUle  de  Paris,  The,  party  sail  on, 
from  New  York,  10. 

Villiers,  Francis,  British  Secre- 
tary at  opening  of  Conference, 
212;  now  Sir  Francis,  Minis- 
ter at  Lisbon,  212;  son  of  Lord 
Clarendon,  227. 

Waite,  Edward  T.,  Secretary  to 
his  father,  7;  on  Ville  de  Paris, 
10;  mentioned,  88;  works  on 
Counter-Case,  106;  at  open- 
ing of  Conference,  212. 

Waite,  Morison  Remick,  ap- 
pointed Counsel  for  U.  S.,  6, 
83;  classmate  of  Evarts,  6,  83; 
sketch  of,  86;  family  at 
Paris,  104;  visits  catacombs, 
108;  prepares  argument  of 
facts  as  to  building  and  escape 


INDEX 


449 


of  cruisers,  124;  at  opening, 
212;  his  estimate  of  Gushing, 
231 ;  later  becomes  Chief  Just- 
ice of  U.  S.,  234;  trip  through 
Switzerland,  284;  lovable  na- 
ture of,  284;  replies  to  Palmer 
on  supply  of  coal,  306;  de- 
scribed by  Young,  342. 

Waite,  Mrs.  and  Miss,  104,  362. 

Walpole,  Spencer,  Life  of  Lord 
John  Russell,  xiii,  44;  on  the 
disposition  by  the  Tribunal 
of  the  indirect  claims,  265. 

War  premiums,  claim  for  pay- 
ment of,  rejected,  314;  claim- 
ants paid  in  part,  314. 

Warren,  Mr.,  109. 

Washburne,  Elihu,  Minister  at 
Paris,  calls  on  party,  97;  first 
impressions  of,  97;  interesting 
talk  by,  on  siege  of  Paris,  98; 
help  to  Germans  in  Paris,  98; 
experience  during  the  Com- 
mune, 99;  regard  for  Gen. 
Gushing,  100;  in  1874,  337; 
silver  given  to  d'ltajuba  in 
presence  of,  374. 

Washburne,  Gratiot,  son  of  Min- 
ister, 97. 

Washington,  railroad  station  at, 
7;  building  occupied  by  De- 
partment of  State,  now  Or- 
phan Asylum,  8;  Mexican  and 
American  Claims  Commission 
offices,  8;  Sumner's  behavior 
at  dinner-party  at,  61 ;  British 
High  Commissioners  at,  63; 
Gushing  writes  book  at,  152, 
357;  office-seeking  at,  233; 
New  York  Herald,  bureau  at, 
334;  original  of  Geneva  de- 
cision and  award  brought  to, 
355;  Bancroft  Davis  in  1907 
living  at,  396. 

Washington,  Treaty  of,  56-73; 
signed  8th  May,  71,  66;  ex- 


pression of  regret  in,  67,  386; 
the  Three  Rules  of,  68;  rati- 
fied, 69;  Art.  I  of,  179;  Brit- 
ish view  of,  in  respect  of  in- 
direct claims,  180;  attempt 
to  amend,  204;  statement  of 
Joint  Protocolists  as  to  Con- 
ference of  8th  March,  71, 381- 
387. 

Weed,  Thurlow,  274. 

Webster,  Daniel,  on  Cushing's 
talent  in  Congress,  76;  Adams 
studied  law  in  office  of,  219. 

Westbury,  Lord  (Richard  Beth- 
ell),  against  detention  of 
cruiser  if  happening  to  visit 
British  port,  39;  urges  a  re- 
fusal to  treat  indirect  claims 
as  before  Arbitrators,  167;  his 
opinion  of  the  Arbitrators, 
282. 

Westminster  Hotel,  Paris,  17, 
95;  the  Waites  at,  104. 

Wetmore,  Edmund,  tribute  by, 
to  memory  of  Mr.  Beaman,  86. 

Whalers,  crew  of,  how  paid,  319- 
20. 

Wharton,  Edith,  on  Lee-Hamil- 
ton as  a  writer  of  the  Sonnet, 
228. 

"Whigs,  The  Old  and  the  New," 
article  in  Quarterly  Review 
(1906),  351. 

White,  Rashleigh  Holt,  corre- 
spondent Daily  News,  333;  on 
Bancroft  Davis,  333. 

Whiteing,  Richard,  correspond- 
ent Manchester  Guardian  and 
New  York  World,  330. 

Wilkes,  Charles,  seizure  of  Ma- 
son and  Slidell  on  the  Trent, 
31;  New  York  merchants  con- 
sult Gushing  as  to  law  on  seiz- 
ure, 79. 

Williams,  George  Henry,  High 
Commissioner,  63;  says  there 


450 


INDEX 


was  no  waiver  of  indirect 
claims,  185;  named  for  Chief 
Justice,  and  name  afterward 
withdrawn,  230. 

Woodhull,  Maxwell  Van  Zandt, 
Gen.,  Secretary  of  Legation, 
London,  109;  attentions  in 
London,  122;  says  "we  are 
ready  to  fight,"  202. 

Woolsey,  Theodore  Dwight,  first 
chapters  of  Case  submitted  to, 
for  suggestions  and  advice,  88, 
409. 


Wormley's  Hotel,  357. 
Wye,  the,  225. 

Yancey,  William  Lowndes,  re- 
presentative abroad  of  South- 
ern Confederacy,  34. 

Young,  John  Russell,  corre- 
spondent New  York  Herald, 
329;  sketch  of  scene  last  day  of 
Conference,  342. 

Young,  Sydney,  works  on  fig- 
ures, table  of  claims,  318. 


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